Troy Lambert v. Nutraceutical Corp.

Filing

FILED OPINION (RICHARD A. PAEZ, MARSHA S. BERZON and MORGAN B. CHRISTEN) REVERSED AND REMANDED. Judge: RAP Authoring. FILED AND ENTERED JUDGMENT. [10582263]

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Empirical Study of Class Actions in Four
Federal District Courts:
Final Report to the Advisory Committee on
Civil Rules
p.
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Thomas E. Willging, Laural L. Hooper & RoberttiJ.a
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Federal Judicial iCenter 23 a
-56
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1996

This Federal Judicial Center publication was undertaken in furtherance of the Center’s
statutory mission to conduct and stimulate research and development for the improvement of judicial administration. The views expressed are those of the authors and not
necessarily those of the Federal Judicial Center.

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Contents
Acknowledgments vii
Introduction 1
The Rule 23 Debate in Historical Perspective 1
The 1995 FJC Study 3
Study Design and Methods 4
Nature of the Data 5
Summary of Findings 7
Findings 13
(1) Individual Actions and Aggregation 13
p.
(a) Average recovery per class member 13
l Cor 2017
,
utica
(b) Consolidation and related cases 14
race mber 12
ut
(2) Routine Class Actions 16
v. N S pte
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(a) What was the relationship, if any, betweene “easy applications” of Rule 23 and
m
on the
in La ofchived 16
the substantive subjects r dispute?
cited actions a
(b) How did class6423 compare to other types of cases in terms of the type of out5
come.and5- stage of the case at which the outcome occurred? 18
o 1 the
N
(c) What was the frequency and rate of certification of (b)(1), (b)(2), and (b)(3) classes
and how did these rates correspond with substantive areas? 19
(d) How much judicial time did class actions take and how did that compare to other
civil actions? 22
(3) Race to File 23
(4) Class Representatives 24
(a) How many “repeat players”? 25
(b) Did judges add or substitute representatives? 25
(c) Did named representatives attend the approval hearing? 26
(d) What was in it for the class representatives? 26
(5) Time of Certification 26
(a) Timing of motions and certification decisions 27
(b) Local rules on the timing of certification motions 27
(c) Decisions on merits in relation to certification 29
(i) Outcomes of rulings on dismissal and summary judgment and impact on the
litigation 32
(ii) Timing of rulings on dismissal and summary judgment 33
(d) Simultaneous motions to certify and approve settlement 34

iii

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(e) Changes in certification rulings 35
(6) Certification Disputes 36
(a) How many certification contests were there and how much time did counsel spend
opposing certification? 36
(b) Was there a relationship between disputes over certification and the nature of
suit? 37
(c) How much effort was devoted to the choice between (b)(1), (b)(2), and (b)(3)
classes and did the effort vary by nature of suit? 38
(7) Plaintiff Classes 40
(a) Did defendants ever seek and win certification of a plaintiff class? 40
(b) How frequently did defendants acquiesce in certification of a plaintiff class by failing to oppose or by stipulating to class certification? 40
(8) Defendant Classes 40
(9) Issues Classes and Subclasses 41
(10) Notice 45
(a) What types of notice, in what time frame, have been required in (b)(1), (b)(2), and
(b)(3) actions? 45
(b) In what form was the notice issued, who paid the cost, and does the cost of notice
discourage legitimate actions? 47
.
(c) How much litigation of notice issues occurred? 49 l Corp
17
a
(d) Did the notices of proposed settlements containtic
detail 0
ceu sufficient12, 2to permit intellir
utra
gent analysis of the benefits of settlement? 49 tembe
t v. N Sep
(11) Opt Outs 52
ber
n
Lamrelationshipsowith subject areas and size of claims 52
(a) Number of optiouts and chived
ed n or3 ar classes 54
cit
(b) Opt outs in (b)(1) 2 (b)(2)
64
(12) Opt Ins .54 5-5
1
No
(a) Opt-in classes 54
(b) Claims procedures 55
(13) Individual Member Participation 55
(a) Participation before settlement 55
(i) Attempts by class members to intervene 55
(ii)Attempts by nonmembers to intervene 56
(b) Class member participation in settlement by filing objections and attending settlement hearings 56
(c) Nonrepresentative class member participation by filing appeals 59
(14) Settlement 59
(a) Did certification coerce settlement of frivolous or nearly frivolous claims? 59
(i) Outcomes of certified classes compared with outcomes for noncertified
cases 59
(ii) Frequency of rulings on motions to dismiss, motions for summary judgment,
trial dates scheduled, and trials held in certified class actions 60
(iii) Timing of settlements in relation to class certification 61
(b) Notice 62
(c) Attendance of nonrepresentative parties at settlement approval hearings 64

iv

Class Actions

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(d) Provisions favoring named representatives 64
(e) How often did magistrate judges or special masters evaluate settlements? 64
(15) Trials 66
(a) How often were trials held and with what results in what types of cases? 66
(i) Certified cases with jury trials 67
(ii)Noncertified cases with jury trials 67
(b) How did class action trial rates compare with trial rates for all other civil cases
within the district? 68
(16) Fee/Recovery Rates 68
(a) What were the ratios of attorneys’ fees to recoveries? 68
(b) How were fees calculated? 69
(c) How was benefit to the class taken into account? 74
(d) What percentage of the fee amounts requested were awarded and how often were
objections and appeals filed concerning fees? 76
(17) Trivial Remedies; Other Remedies 77
(a) How frequently did certified (b)(3) classes lead to relief that is relatively trivial in
comparison to attorneys’ fees? 77
(b) How frequently did certified (b)(2) classes lead to injunctive relief that is relatively
trivial in comparison to attorneys’ fees? 78
.
(c) How often were recoveries distributed to charities or the Corp
l like? 782017
(18) Duplicative or Overlapping Classes 78
,
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(19) Res Judicata 79
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(20) Appeals 80
bert
on
Lam
(a) How often were appeals filed?ved
81
d n
edidiappealsarchi prior decision of the trial judge? 82
cit
(b) How often
423 alter the
5-56did appellate review serve to correct errors in procedural decisions
(c) To what extent
1
No.
relating to the class action mechanism, such as class certification? 85
(21) Class Action Attorneys 87
(a) How extensive was the class action bar across the four districts? 87
(b) How often did the same attorneys appear as counsel for the class in different cases
and in different courts? 88
Conclusion 89
Appendix A: Advisory Committee Draft of Proposed Rule 23—1993 93
Appendix B: Advisory Committee Draft of Proposed Rule 23—1995 101
Appendix C: Figures and Tables 111
Appendix D: Methods 197

Contents

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Acknowledgments
We are grateful to Professor Edward H. Cooper and Dean Thomas D. Rowe, Jr., for their
comments on earlier drafts of this paper.
In gathering data at the courts, we became indebted to individuals too numerous to mention
and in ways too numerous to document. In the U.S. District Court for the Eastern District of
Pennsylvania we owe special thanks to Chief Judge Edward N. Cahn, Michael E. Kunz, Clerk of
Court, and Marlene Anderson, liaison to the study; in the U.S. District Court for the Northern
District of California, to Chief Judge Thelton E. Henderson, Richard W. Wieking, Clerk of
Court, and Ian Keye and Cheri Borromeo, liaisons; in the U.S. District Court for the Southern
District of Florida, to Chief Judge Norman C. Roettger, Carlos Juenke, Court Administrator/Clerk of Court, and Mario Toscano, Deborah Hirshberg, and Matthew .
p Balch, liaisons; and
in the U.S. District Court for the Northern District of Illinois, to then-Chief Judge James B. Mol Cor 2017
utica
ran, H. Stuart Cunningham, Clerk of Court, and Ted Newman, Chris12,
race mber Lavizzo, and Larry Apt
pelson, liaisons. We also express our appreciationu the numerous members of their staffs who
. N to
ert v on Septe
made our work possible and productive.
mb
in Laof the hivedJudicial Center, the authors received substantial
Within the Researchd
cite Division arc Federal
assistance from Marie Cordisco, George Cort, James Eaglin, William Eldridge, David Ferro,
423
5-56
1
Scott Gilbert, Jane Ganz Heinrich, Julie Hong, Yvette Jeter, Molly Treadway Johnson, Patricia
No.
Lombard, Kim McLaurin, Naomi Medvin, Melissa Pecherski, Charles Sutelan, Elizabeth C.
Wiggins, Carol Witcher, and other staff members.
We are also grateful to the editorial staff of the Center’s Publications and Media Division for
the editing and formatting of this document.
A shorter version of this report has been published in volume 71 of the New York University
Law Review as part of a spring 1996 symposium on class actions.

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Introduction
Federal Rule of Civil Procedure 23, an outgrowth of an equity rule, was promulgated in 1938 as
part of the first Federal Rules of Civil Procedure.1 The current version of the rule creates a procedure designed to permit representative parties and their counsel to prosecute or defend civil
actions on behalf of a class or putative class consisting of numerous parties. Rule 23 was last
amended in 1966. The Judicial Conference Advisory Committee on Civil Rules is currently
considering proposals to amend Rule 23.

The Rule 23 Debate in Historical Perspective
Creating a workable procedural standard for class actions has challenged rule makers since the
first draft was published in 1937.2 The 1966 amendments to Rule 23 sparked a “holy war”3 over
rp.
l C class 2017
the rule’s creation of opt-out classes. Opinions became polarized, witho
action proponents
utica r 12,
ceopponents seeing the rule as “a form
seeing the rule as “a panacea for a myriad of social ills”a
utr and
be
of ‘legalized blackmail’ or a ‘FrankensteinrMonster.’”4 eptem
t v. N S
e the 1966 n
Apparently anticipating debatemb
Benjamin
n La about ed oamendments to Rule 23, Professor quoted as
Kaplan, then reportered i advisory chiv
to the
committee that drafted those amendments, was
cit
3 ar
saying that “it will take-a generation or so before we can fully appreciate the scope, the virtues,
5642 5
5
and the vicesNo. 1 Rule 23.” Respect for Professor Kaplan’s caution may have dampened
of the new
any advisory committee interest in revisiting Rule 23.6 Now, a generation has passed and the
current advisory committee has returned its attention to the hotly debated policy issues under-

1. Fed. R. Civ. P. 23, Advisory Committee Note to 1937 adoption (West ed. 1994). The U.S. Supreme Court
adopted the Federal Rules of Civil Procedure on December 20, 1937, and ordered them to be reported to Congress at
the beginning of the January 1938 session. Fed. R. Civ. P. at 8 (West ed. 1994).
2. See James W. Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25 Geo.
L.J. 551, 571 (1937) (“It is difficult, however, to appraise the various problems involved and state a technically sound
and thoroughly workable rule” for class actions.).
3. Arthur R. Miller, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the “Class Action Problem,” 92 Harv. L. Rev. 664 (1979).
4. Id. at 665.
5. Marvin E. Frankel, Some Preliminary Observations Concerning Civil Rule 23, 4 3 F.R.D. 39, 52 (1967)
(paraphrasing Professor Kaplan).
6. See, e.g., Edward H. Cooper, Rule 23: Challenges to the Rulemaking Process 1 (Apr. 21, 1995) (unpublished
draft paper presented at NYU Research Conference on Class Actions and Related Issues in Complex Litigation, on
file at the Research Division, Federal Judicial Center) (an unspoken barrier shielded Rule 23 from Advisory Committee scrutiny for many years). A later version of Professor Cooper’s paper has been circulated and is expected to be
published in a spring 1996 symposium on class actions in the NYU Law Review.

1

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lying the procedural framework of Rule 23. This report to the advisory committee addresses
many of the empirical questions underlying those policy issues.
After the 1966 amendments, the emergence of mass torts as potential class actions has added
fuel to the debate because of the high stakes inherent in that type of litigation. But the issues
remain similar.7 Broadly stated, three central issues permeate the debate. First, does the aggregation of numerous individual claims into a class coerce settlement by raising the stakes of the
litigation beyond the resources of the defendant?8 Second, does the class action device produce
benefits for individual class members and the public—and not just to the lawyers who file them?
And, finally, do those benefits outweigh the burdens imposed on the courts and on those litigants who oppose the class?9
In 1985 a Special Committee on Class Action Improvements of the American Bar Association’s Section of Litigation articulated a list of recommended revisions of Rule 23 and called it to
the attention of the advisory committee. 10 The ABA special committee found that “the class action is a valuable procedural tool” and recommended changes so that such actions would not
“be thwarted by unwieldy or unnecessarily expensive procedural requirements.” 11 Recommended changes included collapsing the three categories of class actions into one, expanding
judicial discretion to modify the notice requirements, authorizing precertification rulings on
motions to dismiss and motions for summary judgment, and permitting discretionary interlocutory appellate review of rulings on class certification.12
. of
In March 1991, the Judicial Conference of the United States acted on rp
l Co a report17its Ad Hoc
a “the Standing CommitCommittee on Asbestos Litigation. The Judicial Conference tic
u requested12, 20
r
race Committee on Civil Rules to study
tee on Rules of Practice and Procedure to directNuAdvisoryembe
its t
t v. Procedurept
whether Rule 23 of the Federal Rules ofrCivil on Se should be amended to accommodate
be
Lam 13 ived these developments, the advisory committee
the demands of mass tortin
c
ted litigation.” Given
crevision42Rule r23,hbased primarily on the ABA special committee’s 1985
drafted a proposed i
of 3 a
6
recommendations. Professor Edward H. Cooper, reporter to the advisory committee, circulated
15-5
o.procedure buffs,” including academics, lawyers, interest groups, and bar orN
this draft to “civil
14 Many of the responses questioned the need for change and suggested that
ganizations.
changes might upset settled practices and make matters worse. 15
7. See, e.g., Roger H. Transgrud, Mass Trials in Mass Tort Cases: A Dissent, 1989 U. Ill. L. Rev. 69, 74 (raising
issues of fairness to litigants and coercion of settlements in mass torts).
8. See, e.g., Staff of the Subcomm. on Securities, Senate Comm. on Banking, Housing and Urban Affairs, 103d
Cong., 2d Sess., Private Securities Litigation 7–8 (May 17, 1994) [hereinafter Senate Staff Report].
9. Id.; see also Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43
Stan. L. Rev. 497 (1991) (regardless of the merits of the claims on which they are based, settlements in securities class
actions produce returns of only about 25% of the potential loss).
10. American Bar Association Section of Litigation, Report and Recommendations of the Special Committee on
Class Action Improvements, 110 F.R.D. 195 (1986) [hereinafter ABA Special Committee Report]. The House of Delegates of the ABA authorized the Section of Litigation to transmit the report to the Advisory Committee but neither
approved nor disapproved its recommendations. Id. at 196.
11. Id. at 198.
12. Id. at 199–200.
13. Judicial Conference of the United States, Ad Hoc Asbestos Committee Report 2 (March 1991).
14. Memorandum from Professor Edward H. Cooper to “Civil Procedure Buffs” (Jan. 21, 1993) (on file at the
Research Division, Federal Judicial Center). A copy of the 1993 version of the Advisory Committee’s proposed Rule

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Legislative proposals to modify Rule 23 have paralleled the rule-making policy debates over
the past twenty years. 16 As a recent example, in December 1995, Congress overrode a presidential veto and adopted legislation designed to alter substantive and procedural aspects of securities class actions. 17 This legislation had bipartisan support and was an outgrowth of hearings and an extensive staff report in 1994.18 Among other provisions, the statute tightens
pleading requirements for securities class actions and directs district judges to stay discovery
and all other proceedings until there is a judicial ruling on any pending motion to dismiss for
failure to satisfy those heightened pleading requirements.19 The statute also modifies the notice
requirements applicable to the filing and settlement of securities class actions20 and limits attorneys’ fees to “a reasonable percentage of the amount of any damages and prejudgment interest
actually paid to the class.” 21

The 1995 FJC Study

The Federal Judicial Center conducted the present study in 1994–1995 at the request of the advisory committee. In general, the committee asked the Center to provide systematic, empirical
information about how Rule 23 operates. The study was designed to address a host of questions
about the day-to-day administration of Rule 23 in the types of class actions that are ordinarily
filed in the federal courts. The research design focused on terminated cases and did not encompass the study of mass tort class actions, which appear to occur relatively infrequently and rep.
main pending for long periods of time.
l Cor 2017
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This report describes the results of the study andaceuti many 12, issues in the conr addresses ber special committee’s rect
tinuing debate about class actions, including . Nuraised by the ABA
those
m
ert v on Septe
b
ommendations. The principal issues are:
d
Lam
• What portion of classn
litigatione
ed i action archiv addresses the type of class to be certified?
cit to rule on the merits of claims before ruling on class certification?
• Are judges reluctant6423
5
• Does filing.of a5- as a class action or certifying a class coerce settlement without regard
o 1 case
N
to the merits of the claims?
• How well does the notice process work and who bears its costs?
• In what ways do class representatives and individual class members participate in the litigation?

23 is attached as Appendix A. A copy of the November 1995 draft of proposed Rule 23 is included as Appendix B.
15. Cooper, supra note 6, at 1.
16. For example, the 95th and 96th Congresses considered proposals to amend Rule 23 at the behest of the U.S.
Department of Justice, Office for Improvements in the Administration of Justice. See S. 3475, 95th Cong., 2d Sess.
(1978), and H.R. 5103, 96th Cong., 1st Sess., Tit. I (1979). For further discussion of this proposal, see Stephen Berry,
Ending Substance’s Indenture to Procedure: The Imperative for Comprehensive Revision of the Class Damage Action,
80 Colum. L. Rev. 299 (1980) (evaluating H.R. 5103 to determine whether it satisfies the goals of improving the
efficiency of small damage claim actions while protecting the interests of defendants and absent parties).
17. Private Securities Litigation Reform Act of 1995, Pub. L. No. 104-67, 109 Stat. 737 (1995).
18. See Senate Staff Report, supra note 8, for a discussion of the issues raised at the hearings.
19. Private Securities Litigation Reform Act of 1995, 15 U.S.C.A. § 77z-1(b) (West Supp. 1996).
20. Id. § 77z-1(a)(3), (a)(7).
21. Id. § 77z-1(a)(6).

Introduction

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• In cases that settle, how do the benefits to the class compare to the benefits to the class
attorneys? How extensive is the class action plaintiffs’ bar?
• How well does the appellate process work and how might discretionary interlocutory
appeals of rulings on class certification affect the fairness of the process?
Such questions—and more—are incorporated in Professor Edward Cooper’s April 1995 report to the advisory committee and conferees at New York University Law School’s Research
Conference on Class Actions.22 Our report parallels Professor Cooper’s report in that we have
presented study data and analyses to correspond with his questions as closely as possible.23
Where relevant, we present general background on the state of the law, often focusing on recent
decisions in the circuits where study cases were filed.

Study Design and Methods
We selected for analysis as class actions closed cases in which the plaintiff alleged a class action
in the complaint or in which plaintiff, defendant, or the court initiated class action activity, such
as a motion or order to certify a class. This report presents empirical data on all class actions
terminated between July 1, 1992, and June 30, 1994, in four federal district courts: the Eastern
District of Pennsylvania (E.D. Pa., headquartered in Philadelphia), the Southern District of
Florida (S.D. Fla., headquartered in Miami), the Northern District of Illinois (N.D. Ill.,
headquartered in Chicago), and the Northern District of California (N.D. Cal., headquartered
p.
in San Francisco).24
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We identified class actions meeting these selectionaceutiby a multistep screening process
r 12,
r criteria mberecords maintained by the
ut
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that included reviewing electronic court docket records, statistical
rt v. n Septe
Administrative Office of the U.S. mbe and published opinions. We then reviewed all cases
Courts,
La
ed o
that were candidatestfor inclusion in chistudy.25 For each case meeting study criteria, we exed in 3 ar the v
ci
amined court records and 642
5 systematically entered appropriate case information into a computerized database. These5- were then analyzed by the same attorney researchers who collected
. 1 data
No
the data. In addition, we reviewed data about class actions from the Federal Judicial Center’s
1987–1990 district court time study;26 those data are summarized at relevant parts of this report.27
22. Cooper, supra note 6.
23. Our headings and subheadings generally follow the structure of Professor Cooper’s paper, but occasionally
we have adapted the titles or rearranged the parts to present the data more clearly.
24. Cases in the study represent a termination cohort, i.e., a group of cases that were selected because they were
concluded within the same time period. Termination cohorts sometimes present problems of biased data if recent
filing trends show fluctuations. Because of the limitations of class action filing data we have not been able to test filing
trends as thoroughly as we would like. On the other hand, we have no reason to believe that the use of a termination
cohort presents serious problems for these data. See Appendix D, Methods.
25. See Appendix D for details about the identification of class actions.
26. See Thomas E. Willging, et al., Preliminary Report on Time Study Class Action Cases (Feb. 9, 1995)
(unpublished report on file with the Information Services Office of the Federal Judicial Center). The time study report includes national data derived from judges’ records of the time they spent on the 51 class actions in the study. See
infra § 2(d) and Table 19. See Appendix D for details about the time study.
27. The current report supplements Willging et al., supra note 26, and supersedes our preliminary presentation
of data to the advisory committee concerning the first two districts studied. See Thomas E. Willging et al., Preliminary Empirical Data on Class Action Activity in the Eastern District of Pennsylvania and the Northern District of

4

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We generally used the median (midpoint) to describe the central tendency of the data. We
used this statistic because the mean (average) in many instances was inflated by a few extraordinarily large or small values (“outliers”).

Nature of the Data
Several perspectives regarding—and limitations of—the data deserve special mention at the outset. The four districts were not selected to be a scientific sampling of class actions nationwide.
Rather, we selected the four districts because available statistical reports on the frequency of
class action activity in those districts indicated that we would have the opportunity to examine a
relatively large number of cases in those districts. This high volume would allow us to observe a
variety of approaches to class actions. Similarly, the selection of districts from four separate
geographic regions would enable us to observe any regional differences in approaches and the
selection of districts from four circuits would enable us to observe variations in case law. Because this study did not employ random sampling or control or comparison groups, our results
cannot and should not be viewed as representative of all federal district courts nor should causal
inferences be drawn from the data. On the other hand, we have no reason or data that would
lead us to believe that these districts are unusual or that they present a picture that is radically
different from what one would expect to find in other large metropolitan districts.
Each district should be viewed as a separate entity and the data from the four districts should
p.
be viewed as descriptive—four separate snapshots of recent class al Cor
action activity. Generally, data
017
ic
from the four districts should not be aggregated. Occasionally, when the2, 2
ceut ber 1 number of cases on a
tra
given subject is quite small, we discuss combined data from m four districts for descriptive
v. Nu Sept
t drawn that thesee theare necessarily representative
r
purposes only, but no inferenceambebe
data
L should ived on
28
in
of all courts.
rch
ted

ci
3a
5642
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California in Cases Closed Between July 1, 1992, and June 30, 1994 (rev. Apr. 13, 1995) (unpublished preliminary
report on file with the Information Services Office of the Federal Judicial Center).
28. For example, when discussing subject matter (nature-of-suit) categories of cases in relation to infrequent
events, we present the data in figures with a caution that no overall conclusions can be drawn from them.

Introduction

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Summary of Findings
Overall, we identified 407 class actions in the four districts. Of those, 152 were certified as class
actions, 59 of which were certified for settlement purposes only.
1. Individual Actions and Aggregation. Across the four districts, the median level of individual recoveries ranged from $315 to $528 and the maximum awards ranged from $1,505 to
$5,331 per class member. Without an aggregative procedure like the class action, the average
recovery per class member or even the maximum recovery per class member seems unlikely to
be enough to support individual actions in most, if not all, of the cases studied.
Occasionally, other aggregative procedures were used in conjunction with a class action.
District court consolidation of related cases occurred more frequently than multidistrict litigation (MDL) consolidation.
p.
2. Routine Class Actions. Securities (b)(3) cases in the four districts exhibited7 number of
l Cor 201 a
ica
standard characteristics that suggest routineness in the wayut which r 12, litigated and adjurace in mbe they are
t
dicated. Such cases did not necessarily last v. Nuthan nonsecurities class actions, were about
longer
epte
ert
as likely to be subject to some form b objection to certification, and did not necessarily yield
am of ved on S
in L
more dollars to individual class members.i Securities cases were, however, more likely to be cerit
ctoed 423 arch objections, to involve larger class sizes than nonsecutified, to be subject representativeness
-56
rities cases, ando. contain boilerplate allegations. Finally, numerosity objections were unlikely
to 15
N
to occur in securities cases, but more likely to occur in other cases.
We did not find the above pattern of routine litigation practices in nonsecurities cases in
which only a Rule 23(b)(2) class was sought. Nor did we find such a pattern in (b)(2) civil rights
cases, a subset of the nonsecurities cases. Accordingly, we concluded that we cannot generalize
about whether these types of (b)(2) cases represented routine applications of Rule 23.
Comparing class and nonclass settlement and trial rates as possible indicators of routineness,
the settlement rate for other nonprisoner class actions was comparable to the settlement rate for
nonprisoner civil actions, but no consistent pattern was detected across the four districts. The
settlement rate for securities class actions was higher than for nonclass securities actions in three
of the four districts. Trial rates (jury and bench), however, were generally about the same for all
nonprisoner civil cases whether or not they were filed as class actions.
Despite similarities with nonclass cases in settlement and trial rates and despite some standardization of arguments and certification decisions in securities cases, class actions as a group
do not appear to be routine cases according to two other measures. In three districts, class actions took two to three times the median time from filing to disposition (15–16 months compared to 5–6 months). In a national time study, certified and noncertified class actions on average consumed almost five times more judicial time than the typical civil case. Both these meas-

7

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ures suggest that class actions are not routine in their longevity or in their demands on the
courts.
The most frequently certified class was the Rule 23(b)(3) or “opt-out class,” which occurred
in roughly 50% to 85% of the certified classes in the four districts. The second most frequently
certified class was the Rule 23(b)(2) or “injunctive class,” which occurred in 17% to 44% of the
certified classes. Rule 23(b)(1) “mandatory” classes were certified in a total of fourteen cases in
three districts.
A securities case was the most likely case type to be certified as a (b)(3) class, while civil
rights cases of various types were most likely to be certified as (b)(2) classes. Certification under
more than one 23(b) subsection occurred in about 10% of the certified classes. The most frequent multiple certification combination was (b)(2) and (b)(3).
3. Race to File. Multiple filings of related class actions might indicate a race by counsel to
the courthouse, perhaps to gain appointment as lead counsel. We found the following multiple
filings: intradistrict consolidations, MDL consolidations, and related but unconsolidated cases.
At least one form of multiple filing occurred in 20% to 39% of the class actions in the four districts.
On a related issue, it did not appear that many class action complaints were filed quickly for
the ostensible purpose of preserving discoverable information.
4. Class Representatives. We did not find any evidence of professional class action plain.
tiffs. Very few persons functioned as a class representative in more orp one case and none
l Cthan 2017
a
served in that capacity in more than two cases in the study. tic were, however, changes in
u There 12,
race Manyer the changes appeared to
class representatives in 8% to 33% of certified Nut actions.emb of
v. class S of at
signify a significant shift in the litigation or the removal ep person in response to arguments of
bert
m
on
opposing parties or objections of nonrepresentative parties. A substantial minority (26% to
in La rchi ed
ed actions in whichvthe court approved a settlement included separately
ct
46%) of all certified iclass 423 a
-56
designated awards 15the named class representatives. The median award per representative
o.into courts and $7,560 in the fourth.
N
was under $3,000 three
5. Time of Certification. Counsel filed motions to certify—or courts issued show cause orders for sua sponte certification—in the four districts within median times of 3.1 months to 4.3
months after the filing of the complaint. Judges ruled on motions to certify within median times
of 2.8 months to 8.5 months after the date of the motion.
Parties often filed motions to dismiss or for summary judgment and judges generally ruled
on those motions in a timely fashion, often dismissing a case in whole or in part. These rulings
on the merits often preceded rulings on class certification, with the rate of precertification rulings on motions to dismiss being higher than the rate for summary judgment motions (although
there were some precertification rulings on summary judgment motions in all four districts).
Overall, approximately two out of three cases in each of the four districts had a ruling on
either a motion to dismiss, a motion for summary judgment, or a sua sponte dismissal order.
Approximately three of ten cases in each district were terminated as the direct result of a ruling
on a motion to dismiss or for summary judgment.
As to the timing of such rulings, defendants generally had an opportunity to test the merits of
the litigation and obtained prompt judicial rulings on motions to dismiss. Not surprisingly,
testing the factual sufficiency of claims via summary judgment took longer—sometimes more
than a year—than obtaining rulings on motions to dismiss.

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6. Certification Disputes. Across the four districts, 152 (37%) of the 407 cases filed as class
actions were certified as such. Fifty-nine (39%) of the certified cases were certified for settlement
purposes only. About 40% of the latter cases were settlement classes, that is, cases in which the
parties submitted a proposed settlement to the court before or simultaneously with the first motion to certify a class.
In three of the four courts, opposition to certification was indicated in over half of the cases
in which class certification was raised. Most arguments centered on traditional issues relating to
the typicality, commonality, and named plaintiffs’ representativeness. Opposition infrequently
addressed the subtype of Rule 23(b) class to be certified; approximately 15% of judicial rulings
granting class certification addressed the type of class certified. (See also sections 2 and 9 of this
Summary.)
7. Plaintiff Classes. Defendants almost never sought certification of a plaintiff class and were
successful in having a plaintiff class certified in only one instance. In half of the 152 certified
cases, defendants acquiesced in a plaintiff class either by failing to oppose a motion to certify or
by stipulating to certification.
8. Defendant Classes. Across the four districts, there were a total of four motions requesting
certification of a defendant class, three filed by plaintiffs and one filed by defendants. One defendant class was certified, at plaintiffs’ request, in a civil rights case.
9. Issues Classes and Subclasses. There were no issues classes in any of the four districts.
p.
Subclasses were infrequent, appearing in ten cases, five of which were securities cases.
l Cor 2017
ca
The ability of the named plaintiff to represent the classeutifrequently2,
c was be disputed because of a
raBut disputes r 1
t
potential conflict of interest with other class members.
m regarding the typicality of
. Nu
ert v on Septe
class representatives’ claims were lessb
frequent.
am vednotice of settlement or voluntary dismissal
10. Notice. Notice of classL
edatin certification or or more of the certified class actions. Notice was
rchi
cit
sent to class members in least3 a
three-quarters
was
42
5-56
delayed in a substantial number of cases. While the reason for the delays could not be deter1
No.
mined, one consequence of the delays was to postpone notice expenses until the case had been
resolved and such expenses could be shifted to the defendant. In a dozen cases, half of which
were settlement classes, neither notice to the class nor hearing on settlement approval appeared
to have taken place.
Parties and judges provided individual notice in almost all certified (b)(3) actions in which
notice was issued. In at least two-thirds of the cases in each district, individual notices were
supplemented by publication in a newspaper or other print medium.
The median number of recipients of notice of certification or settlement (or both) was substantial, ranging from approximately 3,000 individuals in one district to over 15,000 in another.
In many cases plaintiffs and defendants shared the cost of notices. Across the four districts, the
median cost of notice in the limited number of cases with data available exceeded $36,000 for
notice of certification or settlement or both. Litigation related to notice issues occurred in less
than one-quarter of the certified cases in which notice was communicated to the class.
Settlement notices generally did not provide either the net amount of the settlement or the
estimated size of the class. A class member typically did not have the information with which to
estimate his or her individual recovery. Also missing from most notices was information about
the amount of attorneys’ fees, costs of administration, and other expenses. Usually, however,
notices included sufficient information about plans to distribute settlement funds, procedures

Summary of Findings

9

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for filing claims, opt-out procedures, and the timetable for filing objections and participating in
hearings.
11. Opt Outs. At the settlement stage, the percentage of cases with at least one member opting out was considerably higher than at the certification stage. The occurrence of at least one
member opting out of a settlement ranged from 36% to 58% of the cases compared to 9% to 21%
with at least one member opting out of a certification before settlement.
Across all four districts, the median percentage of members who opted out of a settlement
was either 0.1% or 0.2% of the total membership of the class; 75% of the opt-out cases had 1.2%
or fewer of class members opt out. Settlements with small average individual recoveries had a
higher number of cases with one or more opt outs than cases with larger average individual recoveries.
12. Opt Ins. None of the certified class actions required that class members file a claim as a
precondition to class membership. Many cases in the study used a claims procedure to distribute any settlement fund to class members. Claims procedures were used routinely in securities
class actions. The effect of combining a claims procedure with an opt-out class appeared to be
that a class member who did not opt out or file a claim was nonetheless precluded from litigating class issues in the future.
13. Individual Member and Nonmember Participation. Attempts to intervene in cases
filed as class actions occurred relatively infrequently. Following rulings rejecting an attempt to
.
intervene, three prospective intervenors filed appeals challenginglthatorp
C decision,1but none was
0 7
ica
successful. Prospective intervenors also filed three appeals addressing other issues—again withceut ber 12, 2
a
out success. In addition, objecting class members utr appeals of settlements in two major confiled
t v. N Septem
sumer class actions.
ber
o
Lam that were n subject of a hearing generated at least one
Overall, about half of the settlements ived the
ch
ed in partiesrparticipated by filing written objections to the settlement
cit
objection. Nonrepresentative 23 a
64
far more frequently15-5 attending the settlement hearing. Courts approved approximately
. than by
o
90% or moreN the proposed settlements without changes in each district. In a small percentage
of
of cases, the court conditioned settlement approval on the inclusion of specified changes.
14. Settlement. In each district, a substantial majority of certified class actions were terminated by class-wide settlements. Certified class actions were two to five times more likely to settle than cases that contained class allegations but were never certified. Certified class actions
were less likely than noncertified cases to be terminated by traditional rulings on motions or
trials. The vast majority of cases that were certified as class actions had also been the subject of
rulings on motions to dismiss or for summary judgment, most of which did not result in dismissal or judgment. But noncertified cases were not simply abandoned; in each district, they
were at least twice as likely as certified class actions to be disposed of by motion or trial (mostly
by motion). Overall, about half of the noncertified cases were disposed of by motion or trial.
As to the relationship between class certification and settlement, many cases settled before
the court ruled on certification. At the other end of the spectrum, a sizable number—a majority
in three of the districts—settled more than a year after certification.
Special masters were never used to evaluate settlements and in only one case was a master
used to facilitate settlement. Magistrate judges were used occasionally to evaluate a settlement
and more frequently to facilitate settlement.

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15. Trials. The number of trials in study cases was small; a trial began in only 18 (4%) of the
407 cases in the four districts combined. Plaintiff classes and individual plaintiffs did not fare
well at trial. Except for one default judgment that led to a class settlement, no trial resulted in a
final judgment for a plaintiff class. Of the three trials that found for individual plaintiffs, one
judgment was vacated and remanded for dismissal, one judgment was vacated with a resulting
$1 damage award for the plaintiff on remand, and one defendant’s appeal was dismissed. Five of
the 18 trials led to settlement during or after trial, including the default judgment case mentioned above, two certified cases that settled after partial judgments for the class, and two noncertified cases.
16. Fee-Recovery Ratios. Net monetary distributions to the class regularly exceeded attorneys’ fees by substantial margins. In cases where benefits to the class can readily be quantified,
the “fee-recovery rate” (fee awards as a percentage of the gross settlement amount) infrequently
exceeded the traditional 33.3% contingency fee rate.
When a settlement created a fund for distribution to the class, three of the four districts calculated fees using the percentage of recovery method far more often than the lodestar method.
Not surprisingly, courts generally used the lodestar method in cases where the class settlement
produced nonquantifiable benefits. Judges appeared to attach special importance to actual
benefits won for the class when calculating fees, either by using the percentage of the recovery
method, considering fee objections, or adjusting the lodestar calculation.
p.
Four or fewer appeals per district involved attorneys’ fees issues. Allrfee-related appeals rel Co 2017
a
lated to plaintiffs’ counsel fees, including challenges to ceutic of 12,
the amount the award, denial of the
r
ra districts combined, only one of the feet
fee request, or reduction of the fee request. For Nufour tembe
v. the Sep
taward. The other appeals ended in fee-award affirrelated appeals resulted in vacating ber
o
am a fee cases), n
mance (two cases), appealin L
dismissal (two ved reversal of denial of fees (one case), vacating
chi
ed of fees3 arcase), and remanding for reconsideration (one case).
cit
the trial court’s reduction 42 (one
-56
17. Trivial Remedies; Other Remedies. We did not find any patterns of situations where
o. 15 nominal class benefits in relation to attorneys’ fees. Nor did we find any
(b)(3) actionsN
produced
(b)(2) cases that appeared to result in clearly trivial injunctive relief accompanied by high fees.
The fee-recovery rate, as described above, exceeded 40% in 11% or fewer of settled cases, half of
which included nonquantifiable benefits such as a permanent injunction. In the balance of cases
with high fee-recovery rates, the settlement produced relatively small payments to the class as
well as to attorneys for the class.
In five cases in two districts, a portion of the settlement funds was distributed to a charitable
or other nonprofit organization.
18. Duplicate or Overlapping Classes. We found five duplicative or overlapping classes in
related cases that were not consolidated with similar litigation pending in federal and state
courts. Our review of the files indicated that those cases generated few difficulties for the court.
19. Res Judicata. No data were available.
20. Appeals. The rate of filing at least one appeal ranged from 15% to 34%. Noncertified
cases were more likely to have one or more appeals than certified cases. Cases with trials
showed even a higher rate of appeal. Few appeals led to altering the decision of the trial judge at
the appellate level or on remand. Class certification before appeal, however, may have been one
of the factors that led to settlement in cases that settled on remand.

Summary of Findings

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Plaintiffs filed 75% to 85% of the appeals and were rarely successful in reversing or vacating
trial court decisions. On the other hand, defendants rarely filed appeals; their appeals also did
not lead to a high rate of reversal or vacation. Among appeals resulting in full or partial reversal
on appeal, most reversals significantly changed the direction of the case. For appeals in cases
that had been previously certified, reversal and remand generally resulted in a class settlement,
although there were only seven such reversals in the study. On the other hand, reversal and remand in thirteen cases not previously certified generally did not lead to a successful outcome for
the plaintiffs.
Parties rarely sought appellate review of district court decisions that dealt with the mechanics of the class action process, such as certification or class settlement. Litigants appealed certification decisions in seven study cases. Two cases involved certified classes. In one, the certification of a class was affirmed and, in the other, class certification was vacated. In the other
five cases, putative class representatives appealed the denial of class certification. Three of these
five appeals were unsuccessful. The fourth resulted in reversal and remand that led to class certification and the fifth resulted in dismissal with no class certified.
21. Class Action Attorneys. In 156 cases, 160 different law firms served as lead, co-lead, or
liaison counsel, with more than 1 firm appointed in most cases. Twelve of these law firms served
as lead or co-lead counsel in 4 or more cases. In total, these 12 firms appeared 95 cases, 63% of
the certified cases in the study.

p.
l Cor 2017
,
utica
race mber 12
ut
v. N Septe
bert
n
Lam
ed o
ed in 3 archiv
cit
5642
. 15o

N

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Findings
(1) Individual Actions and Aggregation29
(a) Average recovery per class member
Background. In this opening section, we report data on one alternative to class actions, namely,
the filing and consolidation of individual cases. The ultimate question in this subsection is:
How many members of certified classes would have maintained individual actions absent the
class action? We cannot answer that question in exactly those terms, but even the highest level
of recovery per individual class member that we found appears unlikely to support separate individual actions.
p.
Data. Across the districts, the median level of the average recovery per class member30
l Cor 2017
ranged from $315 to $528; 75% of the awards ranged fromuticato $3,341; and the maximum
2,
ce $645
u Even tember 1
awards ranged from $1,505 to $5,331 (see Figure 1).tra assuming that an individual member
v. N Sep
might recover a higher award in a mbert trial, the multiplier would have to be ten or more for
separate
n
La
ed o
an individual to meet the minimum jurisdictional amount for a diversity case. Cases seeking inc federal
ed in 3under hiv statutory authority could be brought as individjunctive relief and cit brought ar
cases
5642
ual actions. However, without a substantial multiplier of individual damage awards, none of the
. 15No
awards would likely induce a private attorney to bring the case on a contingent fee basis or an
individual to advance sufficient personal funds to retain an attorney to file the action. Nor is it
clear how many, if any, individual actions would be supported by the hope for a statutory fee
award (see infra § 16(b)).
The median net settlement per class member in the relatively few securities cases ranged
from $337 to $447 (see Figure 2). The comparable medians for nonsecurities classes ranged
from $275 to $1,472 (see Figure 3). Given the small numbers of cases with monetary settlements
in each district, no firm conclusions can be drawn about the differences between securities cases
and all other cases. It does appear, however, that neither level of recovery would have been
likely to support individual actions.

29. See generally Judith Resnik, From “Cases” to “Litigation,” Law & Contemp. Probs., Summer 1991, at 5
(describing a trend toward aggregation).
30. We calculated the average recovery per class member by starting with the gross settlement amount, deducting
expenses, attorneys’ fees, and any separate awards to the named class representatives, and dividing that net settlement
amount by the number of notices sent to class members.

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Discussion at the advisory committee’s November 1995 meeting raised a question about the
incidence of the “two-dollar” individual recovery. 31 To address that question, we examined all
class actions in the four districts that were certified solely under (b)(3) and that produced an
average distribution per class member of less than $100 (see Table 1). There were nine such
cases in the four courts. These data did not include any two-dollar cases, but they do tend to
bridge the gap between the anecdotal evidence and our quantitative evidence. The absence of
such nominal recoveries in the four districts suggests that the anecdotal cases on which the discussion was based, which presumably arose in other districts, may represent outlier cases at the
bottom of the range of class action recoveries.
For these nine cases with monetary awards below $100 per member, the average award to
the class was $2.63 million and the median award was $2.55 million (see Table 1). For those
same cases, fee awards were generally based on a percentage of the gross recovery. Those percentages clustered around 30% and five of the nine awards were exactly 30% of the total recovery. The average size of the class was 45,055 and the median size was 45,920 members. Eight of
the nine cases were securities cases. (See also infra § 17(a) for a discussion of (b)(3) cases in
which the relief was relatively trivial in relation to attorneys’ fees and for a discussion of nonmonetary relief in such cases.)

(b) Consolidation and related cases

Background. In the previous section, we concluded that individuals would be unlikely to file
p.
C extent to 17
lthe or 20which separate
individual cases to recover damages. In this subsection, we look a
,
utic at distinction, however, is that
cases were filed in relation to the same transactions. race
An important er 12
ut
b
m
v. N S
the separate cases discussed in this subsection generallyeptefiled as class actions and not simbert“relationshipswerebetween aggregation and numbers
ply as individual claims. Here,Lam for ed on
...
in we look iv
of individual actionsited out3 arch transactional setting.”32 We also address how often
c arising 42 of the same
6
“individual actions proceed in the same court, or in different courts, without any attempt at ag15-5
We found what appears to be a modest amount of interdistrict and intradistrict
gregation.”33 No.
consolidation and also found a smaller number of cases that the court declined, or was without
authority, to consolidate.
On occasion, a court may find that “[c]laims identical or similar to those made in a class action may be the subject of other litigation, either in the same court or in other federal or state
courts.” 34 Individuals who have no interest in being class members may file their own separate
suits either before or after certification. Under Rule 23(b)(3)(B), the court must consider the
pendency of other litigation concerning the controversy, in both state and federal courts, by or
against members of the class.35 Further, under Rule 23(c)(A)(4) common issues of fact or law
may be carved out for class certification36 on both an intradistrict37 and on a nation-wide38 ba31. Advisory Committee on Civil Rules, Minutes at 22–23, Nov. 9–10, 1995.
32. Cooper, supra note 6, at 25.
33. Id.
34. Manual for Complex Litigation, Third, § 30.3, at 234 (Federal Judicial Center 1995) [hereinafter MCL 3d].
35. Id. § 30.15, at 219 & n.691 (citing Califano v. Yamasaki, 442 U.S. 682 (1979) (need to consider whether proposed nation-wide class would improperly interfere with similar pending litigation in other courts)).
36. Id. § 33.262, at 324 & n.1067 (citing Wadleigh v. Rhone-Poulenc Rorer, Inc., 157 F.R.D. 410 (N.D. Ill. 1994)
(negligence liability for infected blood), mandamus granted, class certification denied, In re Rhone-Poulenc Rorer,

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sis. Federal courts use Federal Rule of Civil Procedure 42(a)39 for intradistrict transfers and the
MDL statute for interdistrict transfers.40 There is no clear authority for a federal court to consolidate cases filed in state court with actions filed in federal court.
Data on consolidations. In all four districts, interdistrict consolidation of cases in which there
was class action activity was relatively infrequent. The Judicial Panel on Multidistrict Litigation
consolidated between 3% and 6% of cases with cases from other districts. The median time
from filing the complaint in a case to MDL consolidation ranged from approximately four
months in three districts to approximately six months in the other district (see Figure 4). Due to
the small number of cases for different nature-of-suit categories, we are unable to observe any
distinct patterns or draw any reliable inferences about, say, antitrust, securities, or civil rights
cases. In this small subset of cases, the most common nature-of-suit categories were antitrust
cases followed by securities cases (see Table 2).
District courts consolidated similar cases within their own districts more often (14% to 20%)
than the judicial panel consolidated cases across district lines. The median number of cases
within each consolidation ranged from two to four (see Figure 5). Among intradistrict consolidations, the most frequent nature of suit was securities (see Table 3).
Data on nonconsolidations. We also looked at how often courts do not consolidate cases
even though they are related to other litigation pending in federal and state courts. On the federal level, nonconsolidation of related cases occurred in 5% to 23% of the cases in the four disp.
tricts (see Figure 6). Securities was the most common nature of suit among the nonconsolidated
l Cor 2017
ica
cases (see Table 4).
ceut
12,

utra
ber
t v. N Septem
ber
Lam ived on
in
cited 423 arch
Inc., 51 F.3d 1293 (7th Cir. -56 (district judge ordered to decertify the plaintiff class), cert. denied, 116 S. Ct. 184
15 1995)
(1995); In re Copley Pharmaceutical, Inc., “Albuteral” Prods. Liab. Litig., No. MDL 1013, 158 F.R.D. 485 (D. Wyo.
No.

1994) (negligence, breach of warranty claims for contamination of bronchodilator), defendant’s motion to decertify
plaintiff class denied, In re Copley Pharmaceutical, 161 F.R.D. 456 (D. Wyo. 1995)).
37. See, e.g., Sterling v. Velsicol Chem. Corp., 855 F. 2d 1188 (6th Cir. 1988) (opt-out class of water contamination victims in vicinity of a landfill); Jenkins v. Raymark Indus., 782 F.2d 468, 473 (5th Cir. 1986) (district-wide class
of asbestos-injury claimants to resolve specific issues).
38. See, e.g., In re School Asbestos Litig., 789 F.2d 996, 1009 (3d Cir.) (nation-wide 23(b)(3) class of schools
seeking compensatory damages associated with the presence of asbestos-containing building materials), cert. denied,
479 U.S. 852 (1986).
39. Fed. R. Civ. P. 42(a) states:
(a) Consolidation. When actions involving a common question of law or fact are pending before the
court, it may order a joint hearing or trial of any or all of the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may
tend to avoid unnecessary costs or delay.
Rule 42(a) permits partial or complete consolidation of related actions pending in the same district for both
pretrial and trial purposes. See Lloyd v. Industrial Bio-Test Labs, Inc., 454 F. Supp. 807 (S.D.N.Y. 1978) (securities
case where the court granted the defendant’s cross motion for consolidation); Wellman v. Dickinson, 79 F.R.D. 341,
348 (S.D.N.Y. 1978).
40. Pursuant to 28 U.S.C. § 1407(a) (1988), the Judicial Panel on Multidistrict Litigation is authorized to transfer
civil actions pending in more than one district involving one or more common questions of fact to any district for
coordinated or consolidated pretrial proceedings upon its determination that transfer “will be for the convenience of
the parties and witnesses and will promote the just and efficient conduct of such actions.”

Findings

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On the state level, we identified nonconsolidation with pending state litigation infrequently,
ranging from 1% to 3% of the study cases (see Figure 6). Among this small group, securities and
other civil rights cases were the most common nature of suit (see Table 5).
Nonconsolidation of related cases can present difficulties for courts, especially during discovery. Other problems arise when multiple actions result in conflicting or overlapping classes
that may produce, among other things, inconsistent adjudications. For details about the types of
difficulties we found in eight cases that were not consolidated with related litigation pending in
federal and state courts, see Tables 6 and 7. While the nonconsolidations presented difficulties
for the court, they did not appear to be insurmountable. Of the eight cases, half were eventually
disposed of via a class settlement approved by the court. Three of the remaining cases were
terminated via a judicial ruling on a motion to dismiss, a stipulated voluntary dismissal, and a
judicial ruling on a motion for summary judgment.

(2) Routine Class Actions
(a) What was the relationship, if any, between the “easy applications” of Rule 23 and
the substantive subjects of dispute?
Background. Some have maintained that class actions in certain nature-of-suit categories are
often “easy applications” of Rule 23. These cases are considered easy or routine because they
frequently involve complaints with boilerplate allegations, similar classorp.
certification arguments,
and standard settlements. In particular, some have viewed securities class actions as fitting into
ical C 2, 2017
eut
such standard molds. 41 To test these premises, we compared studyer 1 in different nature-ofutrac temb cases
N
suit categories. Since the number of filingstin most categories was small, we limited our analysis,
r v. n
benonsecuritiesSep and civil rights cases (a subset of
where appropriate, to securities cases, ved o
cases,
Lam
ed in 3 archi
nonsecurities cases).it
c
2
Data on Rule (b)(3) -564
cases. First, we compared indicators of routineness in cases filed as Rule
. 15 starting with duration of the case from complaint to closing. Despite the
23(b)(3) classNo
actions,42
perceived complexity of securities cases, they did not take much longer to settle and close than
nonsecurities class actions. Study data for the four districts showed the median time period
from filing the complaint to closing ranged from twenty-four to twenty-eight months for settled
securities class actions. In comparison, median time periods for settled nonsecurities class actions were shorter in two districts (with medians of eleven and thirteen months) and longer in
two others (with medians of thirty-six and fifty months) (see Table 8).43 In particular, the me-

41. In re Activision Sec. Litig., 723 F. Supp. 1373, 1374 (N.D. Cal. 1989) (“all too familiar path of large securities
cases,” including “lugubrious” pleading contests and “massive” discovery). A recent report found courts reacting to
what some view as boilerplate shareholder allegations of officer/director fraud: “The increased [judicial] application
of Rule 9(b) may stem from the courts’ thinning patience with nearly identical ‘boiler-plate’ securities fraud complaints.” Edward M. Posner & Karl L. Prior, Motions to Dismiss Shareholders’ Suits Against Officers and Directors
(ALI-ABA Course of Study: The Prosecution and Defense of Shareholder Litigation against Directors and Officers,
Washington, D.C.), May 28–29, 1992, at 91, 109.
42. These include cases filed under Rule 23 (b)(3) alone or in combination with one or more other subdivisions of
23(b).
43. In addition, Figure 10, discussed infra, presents median duration periods for settled and nonsettled securities
cases combined and compares class actions to nonclass civil actions.

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dian case lengths for (b)(3) civil rights actions were about the same as, or longer than, for settled
securities cases in the three districts where civil rights cases settled.
Do these results indicate that securities cases are “routine”? To respond to that question, we
looked at the rate at which (b)(3) classes were certified, finding somewhat distinctive results for
securities and civil rights cases. A (b)(3) class was certified in 94% to 100% of the securities
cases where a motion or sua sponte order on certification was filed. In contrast, for nonsecurities actions, the certification rates were 64% to 93% in the three districts with sufficient numbers
of cases for meaningful comparison (see Table 9). Interestingly, the certification rate for (b)(3)
civil rights cases was 100% in each of the three districts with (b)(3) civil rights class actions, but
these constituted only two or three cases per district. Although these data are not sufficient to
support broad conclusions, high rates of certification within the securities and civil rights categories could indicate that these are easy applications of Rule 23, at least with respect to the certification decision.
We next examined the bases for opposition to class certification and again found some distinctive patterns among securities cases. In two districts, disputes over certification in securities
cases were about as frequent as for the other major nature-of-suit categories in those districts. In
the other two courts, objections to certification were filed about 1.5 times as often in nonsecurities cases44 as in securities cases. 45 Of special note is that objections on the basis of numerosity
were absent from all (b)(3) securities cases in three districts and were present in only 25% of the
.
certification disputes in the fourth district. In nonsecurities cases, lhowever, numerosity generCorp 017
a and 2
ally was raised more frequently. In two districts, it was ceutic 33% 12,50% of the certificaat issue in
rathree such er These limited results
tion disputes; the other two districts had onlyNutor
m
v. two Se toward bcases.
ert“easy” sailing pte satisfying the numerosity recould be viewed as indicating relatively
b
n
am
ed o
quirement in securities cases. L
ed in 3 archiv in arguments concerning the representativeness
cit
However, another observed difference was
5642
of the principal plaintiffs. In all or nearly all securities cases in the four districts, defendants dis. 15No
puted the ability of named plaintiffs to represent the class, often basing their arguments on alleged conflicts or purportedly unique facts applicable to the representatives (see infra § 6(b)).
Generally, these objections occurred less frequently in nonsecurities (b)(3) cases (see Table 10).
Representativeness disputes were often harder fought battles than numerosity disputes and frequently involved complex issues and facts. The relatively high rates of certifying securities
classes, however, indicates that these challenges were quite often overcome; for example, the
class representative in some cases was replaced by one who was more “representative” (see infra § 4(b)).
We also compared the amounts distributed from settlement funds in certified b(3) cases
where the court approved a settlement. As might be expected, securities cases had median net
monetary distributions to the class ($1.7 million to $3.0 million) far greater than in nonsecurities
cases ($1.1 million or less). Comparing median attorneys’ fee awards for securities and other
class actions showed similar disparities in all but one district. These figures are misleading,
though, unless viewed in light of class size because securities classes are generally large. We
considered class size by computing the net settlement per class member—dividing the total net
44. Certification objections were filed in 58% and 59% of nonsecurities class actions in these two districts.
45. Certification objections were filed in 35% and 40% of securities class actions in these two districts.

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monetary settlement amount by the number of notices sent to class members (see supra § 1(a)).
The median net settlement per class member for securities cases exceeded that in nonsecurities
cases in only one of the three districts with sufficient case counts to allow for comparison (see
Table 11).
Discussion. In sum, the following general characteristics were found in many securities (b)(3)
cases in the four districts: They did not necessarily last longer than most nonsecurities class
actions; were about as likely, or somewhat less likely, to be subject to some form of objection to
certification; and did not necessarily yield more dollars to individual class members. In addition, securities cases were more likely to be certified and subject to representativeness objections. Finally, numerosity objections were a rarity in securities cases, but a relatively frequent
occurrence in other cases. Large class sizes in securities cases often made them distinctive when
compared with most nonsecurities classes.
In addition, and somewhat understandably, the securities complaints contained more frequent use of boilerplate allegations when compared with the wide variety of other types of (b)(3)
class actions. This appeared to be a factor of the governing law, the subject matter of the complaints, and the frequency with which securities cases were filed. Securities claims generally
followed a recognizable pattern based on federal securities statutes and case precedent, whereas
claims not dealing with securities often covered ground not as frequently traveled or charted
new territory.
.
Data on Rule (b)(2) cases. We also compared similar indicators in rp
l Co nonsecurities cases in
17
ica
which only a Rule 23(b)(2) class was sought. In those cases that settled,2, 20
ceut ber 1 the median time from
tra
complaint to closing ranged from fifteen to sixty months, notem
notably different from (b)(3) cases
v. Nu Se Table
t involved (see pt 12 compared to Table 8). The
given the relatively small numbermber
of cases
on
La
rate of (b)(2) certification ranged from hived95% (see Table 13). In three of the districts, the
50% to
d
ewasin 3thancfor nonsecurities (b)(3) cases; in the fourth district it was
r
t
(b)(2) certificationci
rate
lower a
5642to Table 9). Looking just at the subset of (b)(2) civil rights cases
higher (see Table.13 compared
15Noof certification rates of 67% to 100%, with no notable patterns observed (see
showed a range
Table 13). We also found no recognizable patterns in the frequency of defendant opposition to
motions to certify a (b)(2) class (see Table 14). We did, however, observe that the median fee
award was considerably smaller for (b)(2) class counsel when compared to fees in nonsecurities
(b)(3) cases (see Table 15 compared to Table 11). Given the disparate nature of these data, it is
not possible to generalize about whether (b)(2) cases are easy or routine applications of Rule 23.

(b) How did class actions compare to other types of cases in terms of the type of outcome and the stage of the case at which the outcome occurred?
Background. In this subsection, we look at the routineness of class actions from a different angle, namely, how do class actions compare to other types of civil cases. Two related assertions
are commonly made about class actions: that such cases generally settle and that they are rarely
tried.46 The underlying assumptions—sometimes explicitly stated 47—are that the settlement
46. See, e.g., Elliott J. Weiss & John S. Beckerman, Let the Money Do the Monitoring: How Institutional Investors
Can Reduce Agency Costs in Securities Class Actions, 104 Yale L.J. 2053, 2098 (1995) (“Defendants’ and plaintiffs’
attorneys agree to settle virtually all class actions that survive motions to dismiss and motions for summary judgment.”). Cf. Joel Seligman, Commentary, The Merits Do Matter: A Comment On Professor Grundfest’s “Disimplying
Private Rights Of Action Under The Federal Securities Laws: The Commission's Authority,” 108 Harv. L. Rev. 438,

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rate for class actions is higher than that for other types of civil cases, and the trial rate is lower.
In this section we will address that assumption by comparing the settlement and trial rates in the
class actions we studied with such rates in nonclass action civil cases. The comparison group
consists of all nonclass civil cases that were terminated in the four study districts during the
same time period.
Data. Differences in data collection make it difficult to compare settlement rates in class actions and nonclass civil cases.48 Allowing for such differences, it appears that the settlement
rates for nonprisoner class actions were within approximately 16% of the settlement rates for
nonprisoner nonclass actions (see Figure 7). It also appears that settlement rates were higher for
securities class actions than for all nonclass securities cases in all but one district (see Figure 8).
The rate of trial (jury and bench) was about the same for class actions and nonclass civil
cases in one district and the class action rate was slightly higher in two districts. In the fourth
district, the trial rate for class actions was 5.5% and the rate for nonclass civil cases was 3.2%
(see Table 16). In securities cases, there were too few cases to treat as other than anecdotal information. Because of the Judicial Conference Advisory Committee on Civil Rules’s interest in
the subject, we include the information for descriptive purposes only (see Table 17).
In comparison with nonclass civil cases, class actions are not routine in terms of their longevity. Overall, the median time from filing to disposition for class actions was two to three
times that of other civil cases in three of the four districts, and in the fourth (S.D. Fla.), class
.
actions took about four and a half months longer at the median (see orp 9). The patterns
l C Figure 017
were similar for securities cases, but the gaps between class and nonclass securities cases were
utica 1 , 2
race mber(see2
generally not as long as the corresponding gaps Nut
v. in nonsecurities cases Figure 10).
pte
Discussion. Examining trial and settlement ratesn Selead one to conclude that class actions
bert
o might
amother ved terminated in the same courts during the same
n from
are routine, not very different L
ted i time archi cases
time span. But theci
length of423 from filing to termination and, as we will see in infra § 2(d),
6
the amount of judicial5-5 required by class actions distinguish them from other cases.
. 1 time

No

(c) What was the frequency and rate of certification of (b)(1), (b)(2), and (b)(3) classes
and how did these rates correspond with substantive areas?
In this subsection, we examine the frequency and rate of certification of (b)(1), (b)(2), and (b)(3)
classes (and combinations thereof) and address how the rates correspond with different natureof-suit categories.
Background. Under Federal Rule of Civil Procedure 23 a case may be certified pursuant to

448 (1994) (“A substantial portion of securities class actions have been resolved by judicial dismissal on the basis of a
defendant’s motion.”).
47. Alexander, supra note 9, at 524 (“Though empirical data are hard to come by, it seems clear that securities
class actions are resolved by adjudication significantly less often than are other civil cases.”).
48. As noted in Figures 7 and 8, the settlement rate for class actions was based on our observations, derived from
the case files. Settlement rates for nonclass cases were derived from data provided by each court to the Administrative
Office of the U.S. Courts upon termination of a case. We used the categories “dismissed: settled,” “dismissed: voluntarily,” and “judgment on consent.” The differences between Administrative Office data and our data for the same
set of class actions suggest that differences between class and nonclass cases may simply reflect the differences in data
collection methods.

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subdivisions (b)(1)(A), (b)(1)(B), (b)(2), or (b)(3).49 Determining which subdivision under Rule
23 to use is not always clear.50 There may also be instances where a class action may qualify under Rule 23(b)(3) as well as under (b)(1) or (b)(2).
If a (b)(3) class is sought and approved, class counsel is required to provide notice to all class
members and an opportunity to opt out. The (b)(1) and (b)(2) subdivisions do not require notice of class certification and do not ordinarily allow opting out. “Because of the notice requirement and the frequent necessity of having to deal with individual damage claims, greater precision is required in (b)(3) actions than in those brought under (b)(1) or (b)(2).”51
If a proposed class action qualifies or fits the criteria of more than one of the (b) subdivisions, do parties or judges indicate a preference for class certification pursuant to Rule 23(b)(1)
or (b)(2) over Rule 23(b)(3)?52 Some believe that the increased burden of mandatory notice and

49. Fed. R. Civ. P. 23(b) states in relevant part:
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision
(a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual members of the class which would as a practical matter be
dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the
class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any
questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate
actions;
(B) the extent and nature of any litigation concerning the controversy already commenced by or against
members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the management of the class action.

p.
l Cor 2017
,
utica
race mber 12
ut
v. N Septe
bert
n
Lam
ed o
ed in 3 archiv
cit
5642
. 15o

N

50. “The problem is that all class litigation, even litigation for damages, has the potential to affect a defendant’s
standard of conduct. For instance, a suit for nuisance damages may be won by some claimants and lost by others,
thereby creating ‘incompatible standards of conduct’ for the defendant. Hence, damage actions, which are normally
construed as (b)(3) actions, may also fall within the language of (b)(1)(A), and the court may deny notice, giving opportunity to appear or to opt out. The confusion from such amorphous language has resulted in inconsistent case law
on what exactly constitutes a (b)(1)(A) class action and games in which the category is manipulated to avoid the time
and expense of giving notice.” Howard M. Downs, Federal Class Actions: Diminished Protection for the Class and the
Case for Reform, 73 Neb. L. Rev. 646, 673 (1994) (footnotes omitted).
51. MCL 3d, supra note 34, § 30.14, at 217 & n.681 (citing Rice v. Philadelphia, 66 F.R.D. 17 (E.D. Pa. 1974)).
52. See, e.g., Patrykus v. Gomilla, 121 F.R.D. 357 (N.D. Ill. 1988) (civil rights case certified under Rule 23 (b)( 2)
and (b)(3)); National Treasury Employees Union v. Reagan, 509 F. Supp. 1337 (D.D.C. 1981) (civil rights case certified conditionally under Rule 23(b)(1)(A) or (b)(2)); Bertozzi v. King Louie Int’l, Inc., 420 F. Supp. 1166 (D.R.I.
1976) (securities case certified pursuant to Rule 23 (b)(1) and (b)(2)); Alaniz v. California Processors, Inc., 73 F.R.D.
269 (N.D. Cal.), modified, 73 F.R.D. 289 (N.D. Cal. 1976) (employment discrimination case certified under Rule
23(b)(2) and (b)(3)), aff’d sub nom. Alaniz v. Tillie Lewis Foods, 572 F.2d 657 (9th Cir.), cert. denied, 439 U.S. 837
(1978).

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other requirements53 deter parties from seeking (b)(3) certification. Similarly, some courts have
expressed reluctance to certify a (b)(3) class when an action also met the requirements of either
a (b)(1)54 or (b)(2) class. 55 One commentator recommends that “[i]f the court determines that
both provisions [(b)(2) and (b)(3)] apply, then it should treat the suit as having been brought
under Rule 23(b)(2) so that all class members will be bound” 56 because “[t]o hold otherwise
would allow the members to utilize the opting out provision in subdivision (c)(2), which in
some cases would thwart the objectives of representative suits under Rule 23(b)(2).”57
Data. Of the 138 certified classes for which information was available, 84 (61%) were (b)(3)
classes, 40 (29%) were (b)(2) classes, and the remaining 14 (10%) reflected an equal number of
(b)(1)(A) and (b)(1)(B) classes (see Figure 11). Below, we look at the frequency and rate of certification of (b)(1), (b)(2), and (b)(3) classes among the different natures-of-suit categories. We
present nature-of-suit information in response to the question raised, but with the caveat that
the numbers are often so small that no general conclusion can be drawn from them.
Rule 23(b)(1)(A) and (b)(1)(B). Two of the four districts (E.D. Pa. and N.D. Ill.) certified a
total of seven (b)(1)(A) classes. 58 Similarly, two districts (N.D. Ill. and N.D. Cal.) certified a total of seven (b)(1)(B) classes. 59
Rule 23(b)(2). The four districts had a total of forty cases with certified (b)(2) classes. One
district accounted for just over half of these cases. Civil rights cases of various types accounted
for 50% of the (b)(2) classes. This is consistent with the advisory committee’s note that de.
scribes various actions in the civil rights field as prototypes of a (b)(2)orp 60 without suggestl C class,2017
ing that subdivision (b)(2) is limited to civil rights cases. The tsecond largest nature-of-suit cate,
u ica
race mber 12
ut (12.5%).
gory was ERISA, accounting for five of the fortyN
. cases
te

ep
ert v
amb ved on S
in L rchi
a
cited include: (1) notice must be individual to all members who can be identified through
53. Additional requirements
423
reasonable effort; (2) absent -56
class members have the right to exclude themselves from the class and from the binding
15
effect of the judgment; and (3) absent class members have the right to enter their appearance through counsel. Rule
No.

23(c)(2).
54. See, e.g., Robertson v. National Basketball Ass’n, 556 F.2d 682 ( 2d Cir. 1977) (antitrust case where the court
found a Rule 23(b)(1) preferable to a (b)(3) class so that opt-out privileges would be unavailable).
55. See, e.g., Hummel v. Brennan, 83 F.R.D. 141 (E.D. Pa. 1979) (a labor action where the court certified a Rule
23(b)(2) class rather than a Rule 23(b)(3) class to insure that one litigation would dispose of the issue; court also indicated that procedural safeguards are unnecessary when a class is homogeneous, and that any unfairness caused by
members’ inability to opt out was outweighed by the preventing of repetitious suits). See also 1 Herbert Newberg &
Alba Conte, Newberg on Class Actions § 4.20, at 4-74 n.232 (3d ed. 1992).
56. 7A Charles Alan Wright et al., Federal Practice and Procedure § 1775, at 491 & n.64 (2d ed. 1986 & Supp.
1995) (citing Bing v. Roadway Express, Inc., 485 F.2d 441, 447 (5th Cir. 1973) (“Although [the] suit could have been
brought as a (b)(3) action, (b)(2) actions generally are preferred for their wider res judicata effects.”); McGlothlin v.
Connors, 142 F.R.D. 626, 640 (W.D. Va. 1992); Tustin v. Heckler, 591 F. Supp. 1049, 1068 (D.N.J. 1984)).
57. Wright et al., supra note 56 at 491–92 (footnotes omitted).
58. The nature-of-suit categories were other personal property damage (1), civil rights (1), and Employment Retirement Income Security Act (ERISA) (1) in one district and securities (1), civil rights (1), ERISA (1), and other
statutory actions (1) in the other.
59. N.D. Ill. certified five cases with the following nature-of-suit categories: ERISA (3), securities (1), and constitutionality of a state statute (1). N.D. Cal. certified the remaining two cases, which were securities actions.
60. Fed. R. Civ. P. 23 advisory committee’s note (citing Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963), cert. denied, 376 U.S. 910 (1964); Brunson v. Board of Trustees, 311 F.2d 107
(4th Cir. 1962), cert. denied, 373 U.S. 933 (1963), as some examples).

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Rule 23(b)(3). The largest number of certified classes—eighty-four (61%)—were in the (b)(3)
category. N.D. Ill. had the most, twenty-six (31%), followed by E.D. Pa. twenty-four (28%),
N.D. Cal. twenty-three (27%), and S.D. Fla. eleven (13%). In the four districts combined, 64%
of the certified (b)(3) classes were in securities cases (over 80% of certified (b)(3) classes in S.D.
Fla., 74% in N.D. Cal., 62.5% in E.D. Pa., and 50% in N.D. Ill.).
Multiple Certifications. Multiple certifications were found in sixteen cases.61 Three courts
each had five cases and one court had one case (see Table 18). The most frequent combination
was (b)(2) and (b)(3), occurring in five cases, including two ERISA actions, two civil rights actions, and one other statutory action. The second most frequent combination was (b)(1)(A) and
(b)(2), occurring in three cases, one each of other statutory action, civil rights, and other personal property damage cases. The remaining eight cases contained a variety of certification
combinations and involved securities, civil rights, ERISA, and constitutionality of state statute
actions.

(d) How much judicial time did class actions take and how did that compare to other
civil actions?
Background. Yet another measure of the relative routineness of class actions is the amount of
judicial time required. Using data from a sample of cases in the Federal Judicial Center’s most
recent District Court Time Study,62 we compared the judicial time expended on class actions
with that of civil cases (including class actions) filed within the time studyrp.
sample period.
l Co class017 demands
Data. Based on case weights derived from time study data, ithe average 2 action
,
ut ca
considerably more judge time than the average civiltcase. e found this when we looked at the
rac We mber 12
u
data for all subject matter (nature-of-suit) t v. N combined and when we looked at the data
er categories Septe
by nature-of-suit category. Caseamb areed on relation to the weight of an average case,
weights
scaled in
L
ed in that thechivweights are based on data from all cases (including
which is rated as a “1.” Note
cit
3 ar case
class action cases) in the entire time study sample. Case weights are based on average judicial
5642
15time expenditures and take into account a wide range of cases and judicial activity, from sumNo.
mary dismissals to extended trials.
If class actions were treated as a separate category for case weighting purposes (which they
are not), the hours demanded for the class action cases in the district court time study would
justify a case weight of 4.71,63 higher than any civil case type except death penalty habeas corpus (6.15). Racketeer Influenced and Corrupt Organizations (RICO) (3.02) is the next closest
61. Includes three cases with combinations that included at least one (b) subdivision and an unspecified class
type.
62. In the Federal Judicial Center district court time study (Willging et al., supra note 26), district and magistrate
judges maintained records of the time they spent on a random sample of 8,320 civil cases filed in 86 U.S. district
courts between November 1987 and January 1990. Fifty-one of those cases (0.61%, an incidence of 6.1 class actions
for every 1,000 cases filed) contained class action allegations. For a more complete description of the time study
methods and a listing of case weights for all nature-of-suit categories, see Memorandum from John Shapard to Subcommittee on Judicial Statistics of the Committee on Judicial Resources 1 (July 20, 1993) (on file with the Research
Division, Federal Judicial Center) [hereinafter Shapard Memorandum].
63. Shapard Memorandum, supra note 62, at 6–7. The 4.71 case weight for class actions was derived by aggregating the time required for all class action cases in the sample and comparing that time to the time required for the
average case. See Memorandum from John Shapard to Mark Shapiro, Rules Support Office, Administrative Office of
the U.S. Courts (February 8, 1994) (on file with the Research Division, Federal Judicial Center).

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civil case type. As compared to criminal cases, an average class action case would require about
as much judge time as an average case dealing with extortion, racketeering, and threats (4.62)
and would require less time than the average criminal prosecution for bankruptcy or securities
fraud (5.30). Note that these are averages that take into account all judicial activity in the sample
cases, including trials and sentencing when applicable.
The case weights for the three nature-of-suit categories that were most prevalent in the class
action study are: securities, commodities, and exchange, 1.96; other civil rights (filed originally
in federal court), 1.61; and prisoner civil rights (not U.S. defendant), 0.26.64
The average amount of time required for the average class action of each of the above three
types is more than three times the average amount required for the average civil case of the same
type. Securities class actions required 3.2 times the judicial time spent on all securities cases;
other civil rights cases, 3.3 times as long; and prisoner civil rights cases, 5.03 times.
Certified class action cases consumed considerably more judge time than cases filed as class
actions but never certified. Still, noncertified cases required more judicial time than the average
civil case. In the eleven certified class actions in the time study, judges spent, on the average,
eleven times more hours than they did in the average civil action. In the noncertified cases,
judges spent twice the number of hours they spent on the average civil case (see Table 19).65
The above data indicate that class actions, on the average, are far from routine. However,
some types of cases filed as class actions but not certified appear to be fairly routine. For examp.
ple, other civil rights cases that were filed but not certified as class actions consumed less than
l Cor 2017
a
one-third of the judge time consumed by all other civilceuticases. Likewise, securities cases
rights c
r 12,
ra lessmbetwo-fifths of the judge time
ut
that were filed but not certified as class actions N
v. consumed te than
consumed by all securities cases.mbert timeon Sep of some of these noncertified cases
The low
demands
n La chived
may be accounted for by itheir consolidation into other cases that were not part of the time
c ted 4 rights r
study.66 In addition,i the civil 23 a cases may have included some filings with frivolous class
6
action allegations .(e.g., -5 a pro se litigant who is not authorized to represent a class) combined
o 15 by to a prompt dismissal.
N
with frivolous claims, leading

(3) Race to File
Background. Critics of the use of the class action rule, especially in the securities field, claim that
lawsuits frequently are filed without an adequate investigation, immediately after a triggering
event, such as a precipitous decline in a stock’s value.67 Reportedly, the purpose of such practices is to gain an advantage in the competition to be appointed lead counsel for the class. Some
commentators wonder whether the claims of speedy filings of class actions might be explained
by less venal considerations, such as an effort to preserve evidence, especially in tort cases.68
64. Shapard Memorandum, supra note 62.
65. The calculation of the above hypothetical 4.71 case weight for class actions included both certified and uncertified cases. The average number of judge hours per case was approximately eleven for all class actions, but the
amount of judge time for certified class actions was approximately three times that.
66. If a non–time study case became the lead case, judges were instructed not to count the time spent on the consolidated cases.
67. See Senate Staff Report, supra note 8, at 16–29; see also, e.g., Greenfield v. U.S. Healthcare, 146 F.R.D. 118
(E.D. Pa. 1993), aff’d sub nom. Garr v. U.S. Healthcare, 22 F.3d 1274 (3d Cir. 1994).
68. Cooper, supra note 6, at 28.

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We can supply only a modest amount of information relevant to the ultimate issue. We looked
for multiple filings of class action claims and for information about efforts to preserve evidence,
as indicated by a motion to expedite discovery or to preserve evidence.
Data on multiple filings. A race to the courthouse might be inferred from multiple filings of
related claims. If so, the frequency and size of intradistrict consolidations (see Figure 12), the
frequency and size of multidistrict litigation consolidations (see supra § 1(b) and Table 2), and
the frequency with which we found related cases (see infra § 18 and Figure 13) represent potential races to the courthouse. The cumulative number of such cases is considerable: 32%, 22%,
20%, and 39% of the cases in the four districts had one or more of these three forms of multiple
litigation (see Figure 14). Looking only at cases that led to either multidistrict or intradistrict
consolidation indicates that from 13% to 22% of the cases involved multiple filings of cases that a
district judge or the Judicial Panel on Multidistrict Litigation found to have common questions
of law or fact. 69
Data on expedited discovery. We also gathered information about whether class action complaints were filed for the ostensible purpose of expediting discovery or preserving discoverable
information. Generally they were not, at least as measured by the frequency of requests for expedited discovery or preserving information in class litigation.
In seven cases in the four districts, plaintiffs moved for expedited discovery,70 typically for
the purpose of gathering evidence to support a motion for a preliminary injunction. Courts
. to
granted all but two of those seven requests. Otherwise, we found no orp
l C evidence 17support the
claim that any early filings of class actions were for the purpose of expediting discovery or pre, 20
utica
race mber 12
t
serving information.
. Nu
te

ep
ert v
amb ved on S
L
(4) Class Representatives rchi
ed in 3 a
citthis section we address issues related to the selection and supervision of
Call for research. In
5642
class representatives.5. 1 Examining the full range of questions raised concerning class representaNo

tives would call for interviewing lawyers and class representatives about their relationships and,
perhaps, going back to case files or other records to examine depositions and other discovery
information concerning named representatives. Most of that research is beyond the scope of this
study. We urge other researchers to pursue the issues raised and we stand ready to provide information to support such an effort.
Background. To assure that a class is adequately represented, the court has wide discretion
in selecting the named representative and class counsel.71 While the selection of the representative may be less critical than the appointment of counsel, the class representatives should be free
of conflicts of interest with the class72 and should present claims and raise defenses that are
typical of the class claims and defenses. 73
69. Fed. R. Civ. P. 42(a); 28 U.S.C. § 1407 (1988).
70. Plaintiffs so moved in three (3%) of 117 cases in E.D. Pa., three (3%) of 102 cases in N.D. Cal., and one (1%) of
seventy-two cases in S.D. Fla. In N.D. Ill., there were no such cases.
71. MCL 3d, supra note 34, § 30.16.
72. Id. See generally Downs, supra note 50, at 651–58.
73. Fed. R. Civ. P. 23(a)(3). See also General Telephone Co. v. Falcon, 457 U.S. 147 (1982); Howard M. Downs,
Federal Class Actions: Due Process by Adequacy of Representation (Identity of Claims) and the Impact of General Telephone v. Falcon, 54 Ohio St. L.J. 607 (1993).

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(a) How many “repeat players”?
Background. One of the questions asked was if there are “professional” representatives who
appear repeatedly, at least in particular subject areas.
Data. We found few multiple appearances of named plaintiffs in the four districts. Pooling
all the names of class representatives into one file with 353 names of class representatives from
141 cases, we identified duplicate appearances by four individuals and one corporation. In each
instance, the representative appeared in two separate class actions. None of the class representatives appeared in more than two cases in the study. In no instance did the same name arise in
two districts.74
One of the five sets of duplicate appearances involved two securities actions, two sets involved one securities action and another statutory action (ERISA, RICO, and “other”), one set
involved an antitrust action and a civil rights action, and the fifth set involved an ERISA action
and an “other statutory action.”

(b) Did judges add or substitute representatives?
Background. The court has a continuing duty to insure that class representatives “remain free of
conflicts and . . . ‘vigorously pursue’ the litigation in the interests of the class, including subjecting themselves to discovery.”75 The court may have to replace a class representative if “the
representative’s individual claim has been mooted or otherwise significantly affected by intervening events, such as decertification, or where the representative hasp.
or engaged in conduct
prejudicial to the interests of the class or is no longer interested l pursuing 017
ica inC 2, 2 the litigation.”76
eut
We examined the frequency with which representatives were changedrin certified class actions.
utrac tembe 1
N in
Data. Changes in class representatives v.
er occurred Se considerable percentage of certified
b8%,t 21%, and 33%,ap
n
class actions in the four districtsam
representing ten, one, ten, and eleven
ed o
in L (21%,
edFigure 3 archiv differences in the rate of changes did not seem to
cases, respectively) it
c (see 42 15). These
have any direct relationship with the frequency of objections to certification based on the repre-56
o. 15 plaintiffs in (b)(3) or (b)(2) cases (see Tables 10 and 14). Nor did the
sentativenessN the named
of
differences appear to have any direct relationship with the longevity of cases in those districts.
The three districts with rates from 21% to 33% had approximately the same median times from
filing to disposition (see Figure 9). Perhaps some unexamined feature of the local legal culture
among the bar or bench in N.D. Cal. might help to explain the higher frequency of changes in
that district.
For almost half of the changes, no reasons were evident in the case file. In three cases, the
changes were to replace a deceased class representative. The remaining cases—also, almost half
of the changes—were instances in which the change in representative appeared to reflect a significant change in the litigation. Seven changes involved explicit recognition that the representatives’ claims were atypical of the class claims; five changes responded to situations affecting
the ability of the class representative to continue to represent the class (e.g., conflict of interest;
a redefined class did not include the representative); and three involved voluntary withdrawal

74. But note that our data only include class actions that were terminated in four districts during a two-year span.
75. MCL 3d, supra note 34, § 30.16, at 221 (footnote omitted).
76. Id. at 221–22.

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from or opting out of the class. One change added representatives of a subclass of stock option
holders.

(c) Did named representatives attend the approval hearing?
Background. Class representatives’ “views may be important in shaping the [settlement] agreement and will usually be presented at the fairness hearing.” 77 While representatives’ views may
be entitled to “special weight,” they do not have veto power over a proposed settlement.78
Data. Attendance of representative parties at the settlement approval hearing was uneven
across the four districts. In E.D. Pa. (where records of the settlement hearing were most complete) one or more class representatives attended the settlement approval hearing in 46% of the
certified, settled class actions (see discussion at infra § 13(b) and Figure 53). The rates in the
other districts varied from 11% to 28%.

(d) What was in it for the class representatives?
Background. “The propriety of ‘incentive’ awards to named plaintiffs has been rigorously debated. While a number of courts have approved such awards on the basis that class representatives take on risks and perform services, others have denied preferential allocation on the
grounds that the named plaintiff may be tempted to settle an action to the detriment of the class
or come to expect a ‘bounty’ for bringing suit.” 79 A notice of proposed settlement should
“disclose any special benefits provided to the class representatives.” 80
.
Data. A substantial minority of all certified, settled class actionslin which the court approved
Corp 017
ica
,2
a settlement included designated awards to the named ceutrepresentatives. 81 In the four disra class mber 12 37% (see Figure 16).
ut 26%, t46%, 40%, and
tricts the percentages that included such awards were
v. N Sep e
bert
The median amounts of all awards to class representatives in the four districts were $7,500 in
am ved on
two districts, $12,000edthe third, and $17,000 in the fourth (see Figure 17). In many cases,
in in L
hi
citone representative. The median award per representative in three courts
3 arc
there was more than
5642
was under $3,000 and - the fourth was $7,560 (see Figure 18). The median percentage of the
. 15in
No
total settlement that was awarded to class representatives was less than or equal to eleven thousandths of one percent (0.011%) in all four districts.

(5) Time of Certification
Introductory Data. Across the four districts we found a total of 286 cases with either a motion
for or against class certification or a sua sponte show cause order regarding certification in the
four districts. Of these cases, 93 (33%) were unconditionally certified, 59 (21%) were certified
for settlement purposes only, 76 (27%) were denied certification, 6 (2%) were deferred, and 52
77. Id. § 30.44, at 242.
78. Id.
79. 2 Newberg & Conte, supra note 55, § 11.38, at 11-80 to 11-82 and cases cited at nn. 209–11. See also Downs,
supra note 50, at 692 (“Cases in the late 1970s and early 1980s abhorred such preferences, but recent cases permit
such practices more freely.” (footnote omitted)).
80. MCL 3d, supra note 34, § 30.212, at 228.
81. The data, of course, include only information that was available in the court file, the settlement, the notice to
the class, or the motion for approval of the settlement and does not include any undisclosed preferences to class representatives. See Downs, supra note 50, at 692–93 (reporting that often the preferences are not disclosed to the class
in the notice of settlement; also, finding that 37% of the cases studied in N.D. Cal. contained such preferences).

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(18%) had no action indicated. In the following sections we discuss the process whereby decisions about certification were made.

(a) Timing of motions and certification decisions
Background. In this subsection, we examine the point at which motions to certify are filed and
the length of time that elapses before the court rules to see if there is “any pattern to the point at
which the first certification decision is made.” We also examine (see infra § 5(b)) “the effect of
local rules requiring that a motion to certify be made within a stated period.”82 Federal Rule of
Civil Procedure 23(c)(1) directs the court to determine “as soon as practicable” after the commencement of a case whether an action is to be maintained as a class action.
Data. How soon do counsel file motions to certify—or courts issue sua sponte orders regarding certification? Median times in the four districts ranged from 3.1 months to 4.3 months
after the filing of the complaint.83 Seventy-five percent (75th percentile) of the motions or orders were filed within a range of 6.5 months at one end to 16.3 months at the other (see Figure
19).
How soon do courts rule on motions to certify after they have been filed?84 Three districts’
median times ranged from 2.8 months to 4.1 months. The other district had a median time of
8.5 months. In 75% of the cases, courts ruled on class certification within 7.6, 15.8, 10.2, and 8.4
months after the filing of a motion to certify (see Figure 20).

p.
l Cor 2017
a
uti 23(c)(1)1 ,
Background. As noted above, Federal Rule of Civil Procedurec
r directs guidance. To
raceprovideselittle 2 the court to determine class status “as soon as practicable,”.but ut rule temb
specific
N the p
tv
Se
fill that gap and encourage earlyamber or settlement, three of the four districts specify, by
resolution
on
L
local rule, a definite time within which hived
ed in 3 arc the plaintiff must file its motion for certification unless
cit
good cause is shown to extend the time. E.D. Pa. and S.D. Fla. require the filing of a motion to
5642
certify within 90 . 1585 and N.D. Cal. requires the filing of such a motion within 180 days.86
days, No
N.D. Ill. has no local rule addressing the timing of motions to certify.
(b) Local rules on the timing of certification motions

82. Cooper, supra note 6, at 30.
83. In the time study, 64% of the motions or orders in fifty-one class action cases were filed within 100 days of the
filing of the complaint. Preliminary Time Study, supra note 26, at 8–9.
84. For one standard of promptness, see 28 U.S.C. § 476 (motions pending for more than six months need to be
included in a district court’s semiannual report under the Civil Justice Reform Act). Note that the data reflect only
those cases that contained both the certification motion filing date and the date of the court’s ruling.
85. U.S. District Court for the Eastern District of Pennsylvania, Local Rule 27(c) (Aug. 1, 1980) states, in relevant
part:
Within ninety (90) days after the filing of the complaint in a class action, unless this period is extended on motion
of good cause appearing, the plaintiff shall move for a determination under subdivision (c)(1) of Rule 23, Fed. R.
Civ. P., as to whether the case is to be maintained as a class action.

U.S. District Court for the Southern District of Florida, Local Rule 23.1(A)(3) (Feb. 15, 1993) states:
Within 90 days after the filing of a complaint in a class action, unless this period is extended on motion of good
cause appearing, the plaintiff shall move for a determination under subdivision (c)(1) of Rule 23, Fed. R. Civ. P.,
as to whether the case is to be maintained as a class action.

86. U.S. District Court for the Northern District of California, Local Rule 200-6(c) (rev. Nov. 1, 1988) states:

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Data. In the previous section, we saw that in 75% of the cases the time from the filing of the
complaint to the filing of a motion to certify ranged from more than 6.5 to more than 16.3
months in the four districts. In E.D. Pa., the median time for filing a motion to certify was
slightly longer than called for by the local rule, and in S.D. Fla., the median time was more than
a month longer (see Figure 19). In N.D. Cal., the median time was in compliance with the 180day limit, but the time for filing a motion to certify was longer than 180 days in at least 25% of
the cases. N.D. Ill., which has no rule addressing how soon after the complaint a motion for
certification must be filed, had the third shortest time span (8.2 months) between the two filings
for 75% of the cases (see Figure 19). At the other extreme, N.D. Cal., with a 180-day filing requirement, had the longest time span between the filing date of the complaint and the filing date
of the motion to certify (see Figure 19).
We found no relationship between the local rule and the time within which judges rule on
motions to certify once filed. For example, judges took more time to issue 75% of their rulings
(between seven and fifteen months) in the two districts with rules requiring early filing of motions to certify than in the district with a rule requiring filing within 180 days (see Figure 20).
Further, the time to settlement of the case did not appear to have any relationship to the local
rules or the absence of a local rule. Our data revealed that neither the length of time from the
court’s ruling on certification to settlement of the case nor the length of time from filing of the
case to settlement appeared to be influenced by the presence, absence, or provisions of a local
.
rule. For example, in one district with a 90-day rule, 75% of the cases tookp
l Cor approximately threea
017
and-one-half years from the filing of the complaint to ceutic a figure higher than that of
settlement,
12, 2
a
N.D. Ill., which has no rule. Cases in N.D. Cal. (180-day rule) were disposed of more quickly
Nutr pte ber
t v. rule (see Figurem On the other hand, E.D. Pa.
e 21).
than cases in one jurisdiction withmber
a the 90-dayd on S
Lof its cases approximately one year faster than the other three
e
(90-day rule) disposed d in
of 75%
iv
cite 423 arch
courts.
- 6
The time from. ruling5 certification to settlement followed similar paths. However, it must
o 15 aon
be noted thatN
there was substantial amount of missing data regarding settlements in two districts, and our conclusions are based solely on the limited available data. Overall, courts settled
75% of their cases in a range of fourteen to thirty-eight months after certification (see Figure 22;
see also infra § 5(c)). Again, early filing practices did not correspond with quicker resolution of
cases. It took over three years for one district with an early filing rule to dispose of its cases. But
E.D. Pa. again settled its cases more quickly after certification than the other three courts.
Data on the time from filing to termination in two districts with the ninety-day certification
rule showed termination of 75% of the courts’ cases in just over two years. Termination rates
were the same for the other district with the early certification rule and the district with no rule.
Data showed that 75% of those cases were terminated in 34.1 months (see Figure 23).
Discussion. There has not been substantial compliance with the presumptive time limits of
the local rules. However, it should be noted that each local rule has a clause “unless extended
for good cause.” Moreover, delays in judicial rulings on motions to certify can thwart the apparent intent of the local rules. Finally, prompt settlement of the case appears to be affected by
The party seeking to maintain an action as a class action shall file a motion for determination whether it may be so
maintained pursuant to Rule 23(c)(1) within six months of the filing of that party’s first pleading, or at such later
time as the assigned judge may order or permit.

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many factors other than a rule regarding the starting point of the class certification process. In
all three of these areas one might reasonably expect other factors, such as the workload of the
court or the number of judicial vacancies, to affect the court’s output. Lack of compliance with
the rules in the first instance suggests that in many cases judges and litigants do not see such
rules as necessary to the management of the litigation before them.

(c) Decisions on merits in relation to certification
Summary. In this rather lengthy subsection we present data on the frequency and type of rulings on motions to dismiss and motions for summary judgment. We also address the key issue
of the timing of such rulings in relation to rulings on class certification. Many assume that class
action litigation proceeds directly from certification of a class to settlement without judicial examination of the merits of the claims. The data presented in this section indicate otherwise.
Parties often filed motions to dismiss or for summary judgment and judges generally ruled on
those motions in a timely fashion, often dismissing a case in whole or in part. These rulings on
the merits often preceded rulings on class certification.
Background. As noted above, Federal Rule of Civil Procedure 23(c)(1) directs the court to
determine “[a]s soon as practicable” whether an action is to be maintained on behalf of or
against a class. The rule is silent on the timing of rulings on class certification in relation to rulings on motions to dismiss or for summary judgment. The proposed amendment to Rule 23 that
the advisory committee on civil rules circulated in January 1993 contained.a new provision in
orp
23(d)(1)(B) authorizing a court to “decide a motion under Rule 12 lor 56 before017
ica C 2, 2 the certification
ut
determination if the court concludes that the decisionace
utr will87promoteer 1 and efficient adjudib the fair
cation of the controversy and will not cause undue delay.”ptem
t v. N Se
ber
Some argue that it would be am economical for a court to rule on the merits of a putative
L more ived on
in resources
class action beforecited
committing 3 arch to certifying and managing the case as a class action
and before imposing 5-5642 to notify the class. 88 For the same or similar reasons, the adan obligation
o 1
visory committee .is currently considering a procedure that would require a preliminary assessN
ment of the merits as part of a (b)(3) certification decision (see Appendix B, § 23(b)(3)(E)). As
the data below show, many judges in the four districts have not seen themselves as lacking
authority to rule on a motion to dismiss or to issue a sua sponte dismissal order before ruling on
class certification. Nor, apparently, did judges in a prior empirical study of (b)(3) class actions
show any reluctance to rule on the merits before ruling on certification.89 Having explicit
authority to so rule, however, might influence any judge who has felt constrained to avoid ruling
on such motions prior to class certification.
Federal courts of appeals have taken divergent views on whether a ruling on a motion to
dismiss or motion for summary judgment may precede a ruling on class certification. Some
87. Appendix A, § 23(d)(1)(B); see also Appendix B, § 23 (d)(1).
88. Note, The Rule 23(b)(3) Class Action: An Empirical Study, 62 Geo. L.J. 1123, 1145 (1974) (“A judge concerned
with the most efficient use of court time may be reluctant to consider certification and notice without some belief that
the case is strong on the merits.”) [hereinafter Georgetown Empirical Study].
89. Id. at 1144 (“In the preliminary stages of litigation, the court showed no reluctance to dismiss or grant summary judgment to defendants on the merits without consideration of the class issues.”). The study examined all Rule
23(b)(3) class actions filed in the U.S. District Court for the District of Columbia between July 1, 1966, and Dec. 31,
1972.

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courts have interpreted the U.S. Supreme Court’s ruling in Eisen v. Carlisle & Jacqueline90 to
mandate that the determination of class status is to be made before the decision on the merits.91
The reasoning of such courts is that Rule 23(c)(1) requires that a class action seeking damages
be certified before a determination on the merits in order to prevent one-way intervention or
opting out by class members, who would know the outcome of the ruling on the merits.92 Other
courts have approved precertification rulings on the merits, reasoning that a party filing a pretrial motion to dismiss or for summary judgment may explicitly or implicitly waive the protection.93 As noted above, of the courts of appeals for the four district courts involved in this study,
the courts of appeals in the Third and Ninth Circuits have approved the practice of issuing precertification decisions on the merits, the Seventh Circuit has generally disapproved the practice, 94 and the Eleventh Circuit has no published ruling on this point. Based on the rulings in
each circuit we would expect that there would be few, if any, precertification 95 rulings on the
merits in N.D. Ill. and that E.D. Pa. and N.D. Cal. would have more such rulings.
Data. In three districts in the current study—putting aside N.D. Ill., which we will discuss
separately below—the rate of precertification95 rulings on motions to dismiss exceeded 70%. In
cases in which there were rulings on both motions to dismiss and motions to certify, approximately 80% of the motions to dismiss were decided before the motions to certify (see Figure
24).96 In all four districts, the rate of precertification ruling on motions for summary judgment
was lower than the rate of precertification rulings on motions to dismiss (see Figure 25), but this
.
may be a function of the differences between motions to dismiss Corp
l and motions for summary
017
ica
judgment. One would expect, for example, that the need eudiscovery 12, 2delay the filing of
cfor t ber would
a
summary judgment motions. In all courts, more thanr20% ofemrulings on summary judgment
Nut
t the
t v. N.D. Cal.,p67% (ten of fifteen) of the summary
preceded the class certification ruling,er in on Se
b and
am
judgment rulings precededin L
class chived
ed the the acertification ruling (see Figure 25). fewer precertification
r
cit
The data partially support23 expectation that N.D. Ill. would have
564 its court of appeals disapproving that practice. In fact, N.D. Ill.
rulings because of case-law in
o. 15
Nrate of precertification rulings on motions to dismiss (twenty-eight of forty-six, or
had the lowest
61%; see Figure 24) of the four districts but the second highest rate of precertification rulings on
motions for summary judgment (eleven of twenty-seven, or 41%; see Figure 25). Nevertheless,
90. 417 U.S. 156 (1974).
91. Id. at 177–78. See, e.g., Nance v. Union Carbide Corp., 540 F.2d 718, 724 n.9 (4th Cir. 1976) (quoting Peritz v.
Liberty Loan Corp., 523 F.2d 349 (7th Cir. 1975)), vacated, 431 U.S. 952 (1977).
92. Hudson v. Chicago Teachers Union, 922 F.2d 1306, 1317 (7th Cir.), cert. denied, 501 U.S. 1230 (1991). See also
Peritz v. Liberty Loan Corp., 523 F.2d 349, 353–54 (7th Cir. 1975).
93. Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir.) (en banc) (explicit waiver; use of “test case” procedure
before certification ruling), cert. denied, 419 U.S. 885 (1974); Wright v. Schock, 742 F.2d 541 (9th Cir. 1984) (implicit
waiver where defendant “assumes the risk” of a limited effect of its summary judgment motion).
94. See cases cited supra notes 92 & 93. But see Roberts v. American Airlines, Inc., 526 F.2d 757, 762 (7th Cir.
1975) (dictum that defendants by filing a motion for summary judgment before a ruling on class certification
“assumed the risk that a judgment in their favor would not protect them from subsequent suits by other potential
class members”), cert. denied, 425 U.S. 951 (1976).
95. We use the term “precertification” to mean before a ruling on certification, whether or not the ruling is to
grant or deny certification.
96. These data do not include rulings on motions to dismiss that terminated the case without the need for a ruling
on class certification.

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N.D. Ill. judges issued a substantial number of precertification rulings on both types of motions,
which suggests that the law of the circuit regarding precertification rulings has not been the only
factor affecting the district judge’s decision about when to rule on motions to dismiss or for
summary judgment.97
As discussed in the last subsection, three of the districts have local rules regarding the timing
of motions to certify a class; E.D. Pa. and S.D. Fla. require filing a motion to certify a class
within 90 days and N.D. Cal. requires filing within 180 days.98 Still, in E.D. Pa., the percentage
of precertification rulings was substantial for motions to dismiss (thirty-one of forty, or 78%; see
Figure 24), though not for motions for summary judgment (eight of twenty-six, or 31%; see Figure 25). In N.D. Cal., the percentage of precertification rulings was higher for both motions to
dismiss (twenty-six of thirty-two, or 81%; see Figure 24) and for motions for summary judgment
(ten of fifteen, or 67%; see Figure 25).
Again, as discussed in the last subsection, compliance with the rules did not appear to have
been strict. Whether the local rules had an effect seemed doubtful. Assuming that there is any
effect of the local rules, one might expect that requiring a prompt motion to certify would have
more impact on the generally slower and more deliberate summary judgment process than on
motions to dismiss. As one might expect, under the 180-day deadline for filing of motions to
certify in N.D. Cal., rulings on summary judgment more often preceded rulings on certification
than under the 90-day deadline in E.D. Pa. But the timing may say more about the nature of
.
summary judgment than about the effects of the two local rules. l Corp
17
a
Whether a motion to dismiss was ruled on before orceutic
after a motion to2, 20did not appear
1 certify
a
ber
to be related to the grounds cited in the ruling Nutr
on dismissal. At both stages, such motions genp 12(b)(1)
t v. 12(b)(6) ortem (see Table 20), which were
erally referred to Federal Rule of Civil Procedureon Se
ber
Lam motions to dismiss generally (see Table 21). Note, howthe most frequently cited grounds in chived
in
cited 4 N.D. r
ever, that, in all districts but 23 aIll., a motion to dismiss for failure to state a claim (Rule
-56
12(b)(6)) was far more likely to be ruled on before certification. In N.D. Ill., such a motion was
o. 15 be ruled on before or after certification. Perhaps the law of the circuit
N
almost equally likely to
has some influence.
In our preliminary report to the advisory committee,99 we discussed the greater likelihood of
a motion being denied before rather than after a ruling on certification. We observed what appeared to be a pattern of denying precertification motions to dismiss more frequently in E.D.
Pa. and in the time study sample of cases. This phenomenon also occurred to a minor extent in
N.D. Ill., but not in N.D. Cal. or S.D. Fla. (see Table 22). If there is any relationship between
the timing of certification and the denial of motions to dismiss, it might be subject to local variations. Note also that the disproportionate denial of precertification motions compared to

97. Note that Fed. R. Civ. P. 56(a) allows the filing of a motion for summary judgment “at any time after the expiration of 20 days from the commencement of the action . . . ,” and Fed. R. Civ. P. 12(b) calls for the filing of a motion
“before pleading.” Neither rule sets a standard for when such motions should be decided.
Note also that case law in at least two other circuits has concluded that the parties may waive their right to a ruling
on certification or may assume the risk that a precertification ruling on the merits may not have class-wide effect. See
discussion at supra notes 93 & 94.
98. See supra notes 85 & 86.
99. See Willging et al, Preliminary Report, supra note 27, at 31–33.

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postcertification motions also extended to summary judgment rulings in E.D. Pa., but not in the
other courts (see Table 23).
(i) Outcomes of rulings on dismissal and summary judgment and impact on the litigation
Background. In this subsection we present data about the outcomes of motions to dismiss and
motions for summary judgment and in the following subsection we will present data as to the
timing of the filings and rulings on such motions. Critics of the class action device, especially
critics of shareholders’ securities class actions, frequently referred to such cases as “strike
suits.” 100 While it is difficult to find a definition of a strike suit that crisply distinguishes it from
most other types of litigation,101 two essential ingredients seem to be the frivolity of the allegations and the difficulty of obtaining a ruling on the merits. The ultimate test of the strike element
seems to be whether settlements are seen as being coerced because the defendants do not have a
cost-effective opportunity to litigate the merits (see infra § 14(a)).102
The timing and outcome of rulings on motions to dismiss and motions for summary judgment are relevant to the question of whether the class action device is used as a strike suit. Examining such rulings should illuminate whether and when litigants in class actions have an opportunity to address the merits or frivolity of a claim. Motions to dismiss generally test the
sufficiency of the underlying legal theory of the case as applied to the facts alleged in the complaint, regardless of whether or not those facts can be proved. Motions for summary judgment
generally test the sufficiency of the factual basis for each element of the claim.for relief, as shown
orp if a claim
through affidavits, depositions, and other documentary materials. InC
ical general,2017 for relief
,
ut
survives a motion to dismiss, its legal claims are probably e frivolous.12
utrac not mber Likewise, if a claim surv. N Se te
vives a motion for summary judgment, itsrmaterial factual allegations are probably not frivolous.
be t is relevant to p cost of obtaining a ruling on the
The timing of rulings on suchm
motions e on
the
in La promptly, d
edobtained archiv whether before or after class certification, parties
merits. If rulings cant be
ci
3
opposing the class have an42
5-56 opportunity to resolve the claims on their merits without being
forced to settle. o. 1
N
Data on outcomes. Overall, approximately two out of three cases in each of the four districts
had rulings on either a motion to dismiss, a motion for summary judgment, or a sua sponte dismissal order (see Table 24). In three of the four districts, more than one out of six cases included both rulings on dismissal and summary judgment, and in the fourth approximately one
case in nine had both types of rulings (see Table 24).103
100. See, e.g., Senate Staff Report, supra note 8, at 18 (“Each of the corporate executives described what they
characterized as ‘strike suits’ that were filed against their companies, generally following an adverse earnings announcement and resulting stock price drop.”).
101. See, e.g., Tim Oliver Brandi, The Strike Suit: A Common Problem of the Derivative Suit and the Shareholder
Class Action, 98 Dick. L. Rev. 355, 357 n.1 (1994) (“The term ‘strike suit,’ coined in the 1930s, refers to a derivative
action whose nuisance value gives it a settlement value independent of its merits.”); Carol B. Swanson, Juggling
Shareholder Rights and Strike Suits, in Derivative Litigation: The ALI Drops the Ball, 77 Minn. L. Rev. 1339, 1341
n.5 (1993) (“‘Strike suits’ are ‘those based on reckless charges and brought for personal gain.’”) (quoting Robert C.
Clark, Corporate Law § 15.2 (1986)).
102. Georgetown Empirical Study, supra note 88, at 1136 (evidence that defendants gained dismissal or summary
judgment indicates that they did not feel “forced to settle even if the plaintiff’s claim is weak”). We discuss the issue of
whether class actions lead to coerced settlements infra § 14(a).
103. An unknown number of those cases had multiple rulings on motions to dismiss and on motions for summary

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Of the cases in which a motion to dismiss was filed, rulings were issued in from 73% to 81%
of the cases depending on the district. That rate of ruling approximates the rates found in three
studies of motions to dismiss in general litigation. 104 Rulings in which all or part of the complaint was dismissed amounted to 47%, 49%, 76%, and 77% of the rulings in E.D. Pa., S.D. Fla.,
N.D. Ill., and N.D. Cal., respectively (see Table 25). Overall, about half of the cases in each
district included rulings dismissing all or part of the complaint.
The vast majority of motions for summary judgment were, as is typical, 105 filed by defendants (see Figure 26 and Table 26). In two districts, rulings on such motions were issued approximately 85% of the time and in the other two districts about 60% of the time (see Figure
27), data that are comparable to and, overall, somewhat higher than the rate of rulings in a study
of general civil litigation.106 Such motions were granted in whole or in part in more than half of
the rulings (54%–68%) in three of the four districts studied. In the fourth, such motions were
granted in whole or in part 39% of the time (see Table 26).
Combining all dismissals and summary judgment rulings for all cases in the four districts, we
find that approximately two of five cases were dismissed in whole or in part or had summary
judgment granted in whole or in part in two districts and that approximately three out of five
cases were so treated in the other two districts (see Figure 28). But note that granting dismissal
or summary judgment does not necessarily end the litigation because an amended complaint
may be filed or the summary judgment may be partial or may not apply to all parties.
p.
What effect do these rulings have on the litigation as a whole? In examining each class action
l Cor 2017
ica
file we identified the event or events that resulted in terminating the litigation. The effects of
ceut ber ,
raApproximately 12 out of ten cases in
ut
motions in each of the districts were strikingly similar:
three
m
v. Nof ruling on
ert resultona Septe a motion to dismiss or for sumeach district were terminated as the direct
b
Lam Table 39).
mary judgment (see Table 27; see also chived
d in

cite

ar

423
(ii) Timing of rulings on dismissal and summary judgment
5-56 standard of promptness is that motions should be decided within
1
Data on timing. One general
No.
six months or a reason given for the delay.107 Looking at the time from the filing of the first motion to dismiss to the first ruling on dismissal, the median time for rulings on motions to dismiss
ranged from 2.6 months to 7.4 months. Three of the four courts had a median response time of
less than four months (see Table 28). Because the median time is a measure of the central tendency (i.e., the middle of the data) and we wish to discuss a wider range of the data, we also
calculated the time by which 75% of the motions had been decided and found that they were
resolved in 4.7, 13.7, 8.6, and 5.4 months (see Table 28).

judgment filed on behalf of various defendants. To keep the demands of the study manageable we limited our motions study to identifying the filing of the first motion of a given type and examining the outcome of the first ruling on
each type of motion.
104. Thomas E. Willging, Use of Rule 12(b)(6) in Two Federal District Courts 6–8 (Federal Judicial Center 1989)
(finding a rate of 83% and reporting rates of 77% and 56% from two other studies).
105. See Joe S. Cecil & C. R. Douglas, Summary Judgment Practice in Three District Courts 5 (Federal Judicial
Center 1987) (defendants filed 59%, 71%, and 80% of the motions for summary judgment in the three district courts
studied).
106. Id. (finding that about two-thirds of the motions for summary judgment produced rulings).
107. 28 U.S.C § 476 (1990) (motions pending for more than six months need to be included in a semiannual report under the Civil Justice Reform Act).

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The timing of rulings on summary judgment follow a similar pattern, but involve generally
longer time spans than the rulings on motions to dismiss. The median time from the filing of the
first motion for summary judgment to the first summary judgment ruling was less than four
months in two courts and more than seven months in the other two courts (see Table 29). Seventy-five percent of all motions for summary judgment were resolved in 7.9, 15.4, 16.8, and 5.2
months in the four courts (see Table 29). The two slower courts were also slower in ruling on
motions to dismiss.
Discussion. In analyzing the issue of whether large numbers of class actions are strike suits,
our data yield mixed results. On the one hand, motions to dismiss are filed and granted more
frequently in class action litigation than in ordinary civil litigation.108 Such data indicate that a
relatively large number of cases are found to be without legal or factual merit, or both. Comparison with data from a 1974 study of (b)(3) class actions indicates, however, that the rate of dismissal and summary judgment is lower in the current study than it was during 1966–1972 in one
federal district court. 109
On the other hand, defendants generally appear to have had an opportunity to test the merits
of the litigation and obtain a judicial ruling in a reasonably timely manner, particularly for motions to dismiss. Testing the factual sufficiency of claims via summary judgment, however, may
take more than a year for some rulings in some courts.
For at least one-third of the cases in our study, judicial rulings on motions terminated the
.
litigation without a settlement, coerced or otherwise. The settlement orp of other cases was
l C value 2017
a
undoubtedly influenced by rulings granting motions foreutic dismissal,or partial summary
partial
12
rac mber influences on settlement
judgment and by rulings denying such motions. ut merits-related
. N Such epte
r v
value, however, seem not to fall within thetbroadestn S
mbe
o definition of a strike suit.

La
ed
423
Background. The question is how frequently do courts approve settlements which include the
5-56
1
initial certification of a class? As a general principle, settlement negotiations in class actions are
No.
in
(d) Simultaneous motions to certifyhiv approve settlement
arc and
cited

deferred until the court has ruled on class certification. However, on occasion, parties will enter
into settlement agreements before a class is certified. Because of their advantages courts have

108. In an empirical study of the use of Fed. R. Civ. P. 12(b)(6) in two federal district courts, that rule was found
to account for the disposition of 2% to 4% of all cases in the sample. Willging, supra note 104, at 7–9. Motions were
filed in 13% of the cases in the sample and approximately 23% of the rulings resulted in a total disposition of the case.
Id. An earlier study by the Center found higher rates of filing (40%) and disposition (65% compared to 52% in the
later study), as well as a higher rate of granting of motions (40%) in a sample of cases in six federal district courts. Id.
at 5–6 (citing Paul Connolly & Patricia Lombard, Judicial Controls and the Civil Litigative Process: Motions (Federal
Judicial Center 1980)).
109. Georgetown Empirical Study, supra note 88, at 1136 (showing that 55% [44 of 81] of class actions were disposed of favorably to defendants by dismissal or summary judgment). Excluding four voluntary dismissals which we
would not have counted as rulings on dismissal, the rate is 49% (40 of 81), compared to our rate of approximately
33%.

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sometimes approved settlement classes.110 But settlement classes generally warrant closer judicial scrutiny than settlements where the class certification has been litigated.111
Data. Across the four districts, a total of 152 cases were certified in some form or fashion. Of
this total 93 cases (61%) were certified unconditionally and 59 cases (39%) were certified for
settlement purposes only. Of those 59 cases, 28 (47%)—approximately 18% of all certified class
actions—contained information or docket entries indicating that a proposed settlement was
submitted to the court before or simultaneously with the first motion to certify.
The twenty-eight cases with simultaneous motions to certify and approve settlement were
filed in three districts. One district had fourteen cases or 50% of all cases, eight of which were
securities cases. The next district had seven cases (25%), four of which were other statutory
actions. The third district also had seven cases (25%), four of which were civil rights actions
(see Table 30). In twenty-four of the twenty-eight cases (86%), the court approved the settlement without changes. In the remaining cases, the court approved the settlement but with some
changes. (See also infra § 14(b).)
Are there differences in the two types of classes certified for settlement purposes, that is,
cases certified with or without a simultaneous settlement? Our data were especially limited in
this area because information was missing for numerous cases, and as a result no reliable conclusions can be drawn from them. We found that the (b)(3) class was the most frequently certified class in both types of scenarios. The (b)(2) class was the second most frequently certified
p.
class (see Table 31). These results parallel our finding that the (b)(3) class is the most frequent
l Cor 2017
ica
type of class sought and certified. (See supra § 2(c).)
ceut
12,

utra
ber
t v. N Septem
ber
on
Background. In this subsection am
L we look atvthe frequency with which courts change the definii ed
d in
edirection3ofarchcertification rulings. The Manual for Complex Litigation of the class orcit
the
their
tion, Third, indicates5-5642
that “[w]hether a class is certified and how its membership is defined can
1
often have a decisive effect not only on the outcome of the litigation but also on its management.
No.
(e) Changes in certification rulings

It determines the stakes, the structure of trial and methods of proof, the scope and timing of
discovery and motion practice, and the length and cost of the litigation.”112 The Manual also
warns that “[u]ndesirable consequences may follow when an expansive class, formed on insufficient information, is later decertified or redefined.” 113
Data. Of 152 certified cases, counsel in 23 (15%) cases filed either a motion to reconsider the
court’s decision or a motion to decertify the class. The courts’ responses to these motions varied. 114 In 9 (39%) of the 23 cases the court affirmed its certification ruling. In 5 (21%) of the 23
cases the court denied reconsideration of the matter altogether (see Table 32).

110. See, e.g., Weinberger v. Kendrick, 698 F.2d 61 (2d Cir. 1982); In re Beef Indus. Antitrust Litig., 607 F.2d 167
(5th Cir. 1979). Cf. Plummer v. Chemical Bank, 668 F.2d 654 (2d Cir. 1982); In re Franklin Bank Sec. Litig., 574
F.2d 662 (2d Cir. 1978).
111. MCL 3d, supra note 34, § 30.45.
112. Id. § 30.1, at 212.
113. Id. § 30.11, at 215.
114. Outcomes included: denying reconsideration, affirming certification, reversing certification, modifying certification deferring reconsideration, taking no action, and lastly, taking some other form of action.

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Of the districts’ noncertified cases, in only 4% did counsel file a motion to reconsider the
court’s decision. The court denied the reconsideration motion in 72% of those cases. In the remaining 28% of the cases, the court either took some other action or did not rule on the request.

(6) Certification Disputes
In this section we first address the questions: How much time is spent contesting certification?
Are there correlations between the subjects of litigation and certification disputes? Is much effort devoted to contesting the choice between (b)(1), (b)(2), and (b)(3) classes, and does this
correlate to the subject of the litigation?115

(a) How many certification contests were there and how much time did counsel
spend opposing certification?
Background. Pursuant to Federal Rule of Civil Procedure 23, class certification is left to the
sound discretion of the district court. 116 Because judicial discretion is not immutable, disputes
inevitably arise. At this stage, the court does not have the responsibility of adjudicating the
merits of the class or individual claims (see supra § 5(c)).
Data. In three of the four study courts, defendants opposed certification in slightly over
50%117 of the cases with a motion or sua sponte order regarding class certification. Defendants
opposed 40% of the motions or orders in the other district (see Figure 29).
We have no reliable measure to estimate the time counsel spend orp.
contesting certification.
C but it 17
Some have suggested that the length of the brief is an adequatecal
i indicator,2, 20is far from clear
eut
that more pages equates to more time, especially whenac subjectber 1has become routinized
utr the tem matter
N
(see supra § 2(a)). Notwithstanding this, rt v. of the ep
time spent on cerS expressed
be becauseonwhether there interest into be a relationship
tification contests, we looked at am lengths and at
appeared
Lbrief ived
in
between the length ofed opposition ch and the outcome of the certification dispute, that is,
cit the 423 arbrief
whether the case was 5-56
1 certified.
o.in at least 70% of cases where opposition to certification was indicated counWe foundN
that
sel in the four districts submitted opposition memoranda (see Figure 30). Further, in cases for
which information was available, 75% of the opposition brief lengths ranged from twenty-seven
pages or less in one district to sixty-one pages or less in another, with median lengths ranging
from twelve pages to twenty-six pages. Briefs supporting certification in disputed cases were
somewhat longer; 75% ranged from thirty-five pages or less in one district to seventy-six pages
or less in another, with median lengths ranging from eighteen to forty pages (see Figure 31).
A relationship, although modest, appeared to exist between opposition brief lengths and
whether a case was eventually certified. In 75% of the cases in three districts, opposition brief
lengths were longer in certified cases (with differences of three pages in one district, 9.5 in the
second, and thirty-one in the third).
How does the length of judicial opinions in contested cases that were ultimately certified
(certified dispute cases) compare to contested cases that were not certified (noncertified dispute

115. Cooper, supra note 6, at 30.
116. Zeidman v. Ray McDermott & Co., 651 F.2d 1030, 1038–39 (5th Cir. 1981); 7B Wright et al., supra note 56,
§ 1785.
117. This percentage is lower than the time study figure, which was 60%. See Willging et al., supra note 26, at 10.

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cases)? Should we expect to find lengthier opinions in certified cases? The length of opinions in
certified dispute cases were somewhat lengthier than those in noncertified cases, but not dramatically so. We found that in 75% of the certified dispute cases, opinion lengths ranged from
thirteen to twenty-four pages as compared to three to nineteen pages for noncertified cases (see
Figure 32).118
Opposition to certification was indicated in twenty-seven different nature-of-suit categories
in the four districts. In twelve of these different case types, opposition to certification appeared
only once. Not surprisingly, because of the amount in controversy in many securities cases and
because of their overall prevalence in the four districts, in two of the four districts opposition
was most prevalent in these cases. In the third district, the number of securities and prisoner
civil rights cases were the same and in the fourth district most opposition arose in other civil
rights cases (see Table 33). When we combined civil rights cases—other civil rights, jobs, accommodations and welfare—they accounted for the most opposition in two districts (see Table
34). In another district, opposition was found equally in prisoner civil rights, securities, and
other civil rights cases.

(b) Was there a relationship between disputes over certification and the nature of
suit?
Data. Most of the contested cases included arguments about three of the four traditional Federal Rule of Civil Procedure 23(a) issues: typicality, representativeness, and commonality. Dis.
Corp 017
lalmost equal frequency. Arputes addressing representativeness and typicality occurred twith
,2
u ica
guments about the other traditional issue, the size of ace
(numerosity),
r the classmber 12 occurred less freut
v. numerosity,te in securities, civil rights, and
quently (see Figure 33). Most disputes, except N
S arose
bert frequentlyepcivil rights and labor cases. Looking
labor cases. Numerosity disputes arose most d on in
am ve
in L
i
at each type of disputeed
a ch
cit separately, werfound:
3Disputes regarding the ability of the representatives to adeRepresentativeness -5642
disputes.
o 15
quately represent .the class occurred most often, appearing in 89 of the 141 cases (63%) in which
N
there was opposition to certification. Most of these disputes arose in securities (27 cases, or
30.3%), civil rights (23 cases, or 25.8%), and labor (15 cases, or 16.8%) cases.
Typicality disputes. Disputes addressing the typicality of the class representatives’ claims
arose in eighty-seven cases (61%) and similarly appeared most often in securities (twenty-six
cases, or 29.8%), civil rights (twenty-four cases, or 27.5%), and labor (thirteen cases, or 14.9%)
cases.
Commonality disputes. Disputes about the presence of common issues of law and fact appeared in seventy-four cases (52%) and again were generally found in securities (twenty-one
cases, or 28.3%), civil rights (nineteen cases, or 25.6%), and labor (twelve cases, or 16.2%) cases.
Numerosity disputes. Numerosity disputes arose less frequently than the other types of disputes, occurring in forty-nine cases (34%). Such disputes generally appeared in civil rights
(twenty-one cases, or 42.8%) and labor (six cases, or 12.2%) cases.

118. Time study data revealed that the average amount of judicial time spent on certification rulings was about five
hours. The average ruling was approximately seven pages. The median length was one page but some were as long as
twenty-five to thirty-five pages. Willging et al., supra note 26, at 13.

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(c) How much effort was devoted to the choice between (b)(1), (b)(2), and (b)(3)
classes and did the effort vary by nature of suit?
Background. One of the assumptions set forth in the September 1985 report of the American
Bar Association’s Section of Litigation Special Committee on Class Action Improvements is
that disputes over the type of class to be certified are frequent and problematic. 119 As a result of
these disputes, the committee indicated that “[t]he trifurcation created by present subdivision
(b) places a premium on pleading distinctions with important procedural consequences flowing
to the victor.”120 Further, the committee recommended eliminating the three subsections of
subdivision (b) “in favor of a unified rule permitting any action meeting the prerequisites of
Rule 23(a) to be maintained as a class action if the court finds ‘that a class action is superior to
other available methods for the fair and efficient adjudication of the controversy.’”121
A central feature of the preliminary draft proposal of Rule 23 circulated by the Advisory
Committee on Civil Rules in January 1993 was the merger of current subdivisions (b)(1), (2),
and (3) into a unitary standard.122 This standard would have applied a single set of certification
factors to all cases and allowed trial judges discretion in designing class actions suited to the
needs of particular cases, including “the power to certify different class actions for different
parts of the same case,” less stringent forms of notice for (b)( 3) classes, some form of notice in a
(b)(1) or (b)(2) class action, and an opt-out right in (b)(1) or (b)(2) class actions.123 “This new
power over opt-out should make it easier for trial judges to experiment with novel opt-out
.
structures. For example, a judge might certify a mandatory class forl liability and an 7
Corp 01 opt-out class
a
for damages on the theory that the damage phase triggers eweightier litigant–autonomy interest
a utic
2, 2
rac formber 1is necessary to protect
t
uopt-out te damages
than liability or on the theory that [permitting N
v. an] Sep
high stakes plaintiffs from exploitation.”124t
ber
on
Lam
Not everyone agreesd inthere shouldved collapsing of categories as set forth in the 1993
e that that therchi be a of the Rule 23(b) categories would (1) have
cit
draft proposal. Some argue423 a elimination
-56
ramifications both 15the opt-out provisions and the notice requirements of the existing rule
o. for
N
and (2) impact the legitimacy lent by the traditions established by (b)(1) classes and the moral
tones established by the civil rights cases’ uses of (b)(2) classes. Additionally, others believe that
119. ABA Special Committee Report, supra note 10, at 203 (“With such procedural consequences at stake, it is no
surprise that enormous amounts of energy and money are often devoted to the characterization battle, and difficult
questions command the attention of the courts as the parties struggle at the outset of a case to decide whether the
presence of an ‘individual issue’ defeats a claim to (b)(1) status . . . .”). See also Tober v. Charnita, Inc., 58 F.R.D. 74
(M.D. Pa. 1973); Contract Buyers League v. F & F Inv., 48 F.R.D. 7 (N.D. Ill. 1969).
120. ABA Special Committee Report, supra note 10, at 204.
121. Id. The Committee Note of Proposed Rule 23 (see Appendix A) suggests that the rationale behind the collapsing of categories or proposing a unified rule was simplification:
This structure has frequently resulted in time-consuming procedural battles either because the operative facts did not fit neatly into any one of the three categories, or because more than one category
could apply and the selection of the proper classification would have a major impact on whether and
how the case should proceed as a class action.
122. Cooper, supra note 14.
123. Robert G. Bone, Rule 23 Redux: Empowering the Federal Class Action, 14 Rev. Litig. 79, 83 (1994).
124. Id. at 84 n.15 (citing John C. Coffee, Jr., The Regulation of Entrepreneurial Litigation: Balancing Fairness
and Efficiency in the Large Class Action, 54 U. Chi. L. Rev. 877, 925–30 (1987) (analyzing various conditions on opt
out)).

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the current subdivisions have historical roots that enable the courts to draw upon the jurisprudence developed from those cases. A change in the rule could very well lead to unpredictable
results.
If the language of the 1993 draft proposal were adopted, courts would be able to allow class
members to opt out of (b)(1) and (b)(2) classes, and might deny members the opportunity to opt
out of a (b)(3) class, thereby preventing individuals from pursuing individual litigation. Additionally, “[e]liminating the three categories is likely to create greater procedural complexity because the court must then determine in every case whether notice and opt out requirements
should apply, and if so, under what conditions.”125 “This subjective standard . . . would invite
protracted procedural battles about what the parties consider to be ‘superior,’ ‘fair’ and
‘efficient.’ The standard’s inherent subjectivity would also practically assure that different
judges applying their own views of superiority, fairness and efficiency would render decisions
that litigants would inevitably find to be inconsistent and confusing.” 126
Some courts have experimented with their application of Rule 23 and have employed judicial
discretion in applying the subsections of Rule 23(b) more flexibly.127
Data. We examined the extent to which the parties and the courts address the class-type
issue and found that in all four districts the parties infrequently address the issue. In the 122
cases for which information was available, the parties’ arguments in 95 cases (78%) did not address whether one type or another should be certified. In 20 cases (16%) the portion of the
p.
briefs devoted to such arguments was less than 25% of the size of the briefs. In the7
l Cor 201 remaining 7
a
cases arguments regarding class type were less than 75% eutic of 12,
of the size the briefs in 6 cases and
rac mber
between 75% to 99% in the remaining case. . Nut
128 In
e v o less epte
Courts address the type of class to bert
amb certified n Sfrequently than the parties.court the 140
L available,vin d
e approximately 85% of the cases the
cases for which information was
did not
in
rchi
cited at 3 However, in the 27 cases where counsel did raise the classaddress the class-type issue42all. a
6
type issue, the courts5-5 of those cases (77%) addressed the issue. Of those 21 rulings, 20 deo. 1 in 21opinion to the class-type issue and 1 devoted 50% to 74%.
N
voted less than 25% of the
Discussion. Data collected from the four districts do not support the American Bar Association’s earlier stated assumption that disputes over the type of class to be certified are frequent.
We cannot tell from these data whether the disputes over the type of class in this minority of
cases might be problematic. Whether or not having disputes over the type of class in 22% of the
opposition briefs and in about 15% of the judicial opinions supports a proposed rule change is
clearly a question for the special committee.

125. Lawyers for Civil Justice et al., Comments on Federal Rule of Civil Procedure 23, at 1, 2 (Apr. 22, 1993)
(unpublished report) (on file with the Research Division, Federal Judicial Center).
126. Id. at 7.
127. See, e.g., Bell v. American Title Ins. Co., 277 Cal. Rptr. 583 (Cal. Ct. App. 1991); Boggs v. Divested Atomic
Corp., 141 F.R.D. 58 (S.D. Ohio 1991).
128. Cf. Georgetown Empirical Study, supra note 88, at 1143 (“Orders granting certification seldom specif[y]
which category of rule 23 (b) . . . [is] involved.”).

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(7) Plaintiff Classes
(a) Did defendants ever seek and win certification of a plaintiff class?
Data. Defendants almost never sought certification of a plaintiff class. In less than 1% of the
motions filed was the defendant seeking such certification. Our data uncovered one such motion in a tort (personal property-other fraud) case which was subsequently certified. In approximately 79% of the cases with certification motions, plaintiffs were seeking to certify a
plaintiffs class. In over 12% of the remaining cases (see Figure 34, other category), the parties
generally stipulated to a plaintiff class or settlement class.

(b) How frequently did defendants acquiesce in certification of a plaintiff class by
failing to oppose or by stipulating to class certification?
Data. In half of the 152 certified cases, defendants acquiesced in certification of a plaintiff class
by either failing to oppose the motion or sua sponte order for certification or by stipulating to
class certification. Our data did not reveal defendants’ basis or rationale for acquiescing.

(8) Defendant classes129
Background. The core questions are: How common are defendant classes? Are there identifiable but narrow settings in which they are most likely? 130 Case law and commentary give us
more information than the empirical data in the study, which simply confirms that use of defenrp.
dant classes is rare. Defendant class actions have been long ical Co as a 017 procedural
recognized
valid
t
ceuto a judgment ,although some indi12 2
device “whereby an entire class of defendants can berbound
ta
ber
vidual members did not participate in the tlitigation but eptem
v. Nu S were represented by named class repreber
sentatives.”131 It appears on its face that Ruled oallows for the certification of both defendant
Lam ive 23 n
in
and plaintiff classes.i132 However, certification of defendant classes is presumed to be uncomc ted 423 arch
mon. 133
-56
Though perhaps uncommon, case law and commentary show that defendant classes have
o. 15
N
been used in various types of cases. The most common use is reported to be “in suits against
local or state enforcement officials challenging the constitutionality of state law or practice.”134
Defendant classes have also been employed “in patent infringement cases in which a common

129. Note, Defendant Class Actions, 91 Harv L. Rev. 630, 637 (1978):
The traditional defendant class action is limited to the resolution of issues that are perfectly common to all the
class members. As such, it is essentially a device that permits the offensive assertion of collateral estoppel on the
common issues against non-parties, rather than a method of conducting a unitary proceeding that determines the
rights and liabilities of each class member represented in the suit.

130. Cooper, supra note 6, at 30–31. Professor Cooper also asks a number of questions about how defendant
classes work. Given the paucity of data on the subject, we are unable to respond meaningfully to those questions.
131. Robert E. Holo, Defendant Class Actions: The Failure of Rule 23 and a Proposed Solution , 38 U.C.L.A. L.
Rev. 223, 223 (1990).
132. Fed. R. Civ. P. 23(a) provides that “[o]ne or more members of a class may sue or be sued as representative
parties. . . .”
133. See DeAllaume v. Perales, 110 F.R.D. 299, 303 (S.D.N.Y. 1986) (“Although Rule 23 provides for defendant
as well as plaintiff classes, certification of a defendant class is rare.”).
134. 1 Newberg & Conte, supra note 55, § 4.50, at 4-196.

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question of patent validity is litigated against a defendant class of alleged infringers.”135 Case
law also reveals that defendant classes have been upheld in civil rights,136 criminal justice,137
mental health, 138 and securities cases.139
Data. Our data support the earlier assertion that defendant classes are not common. In the
four districts, there were a total of four motions requesting certification of a defendant class,
three filed by plaintiffs and one filed by defendants. Of the 152 certified cases in the four districts, N.D. Ill. was the only one with a certified defendant class. Certification had been sought
by the plaintiffs in a civil rights case. After reviewing that case file we were unable to determine
whether the defendant was a willing representative for the class, nor could we ascertain the extent of compensation for such an undertaking.

(9) Issues Classes and Subclasses
In this section we address the questions: How frequently, and in what settings, are issues classes
[i.e., cases in which some but not all of the issues are certified for class treatment] used? Subclasses? How diligent and sophisticated is the inquiry into possible conflicts of interest within a
class . . .?140 We found no issues classes and few subclasses. We also found that the ability of
the representative to represent the class was frequently disputed on the ground that the named
plaintiffs had a potential conflict of interest with other class members.
Background on issues classes and subclasses. Rule 23(c)(4) authorizes the .court (1) to allow a
p
class action to be maintained with respect to particular issues, oral Cor
(2) to divide the class into apic the courts 2017 ability to
in assisting r 2, with the
propriate subclasses. 141 Subdivision (c)(4) is helpful aceut
utr requirements for1maintaining a class acrestructure complex cases in order to meetv. N
the other
mbe
ept 142
ert requirements.e
tion, such as the superiority and amb
on S
L manageability Fla.,
143 ive
inE.D. Pa.,chS.D.d 144 N.D. Ill., 145 and N.D. Cal.,146 have case
All four of the districts,
cited 423 ar
law reflecting the courts’ willingness to certify an issues class if the other Rule 23 requirements
56
are fulfilled. o. 15-

N

135. Id. at 4-197 (citing Dale Elecs., Inc. v. RCL, Inc., 53 F.R.D. 531 (D.N.H. 1971); Research Corp. v. Pfister
Associated Growers, Inc., 301 F. Supp. 497 (N.D. Ill. 1969); Technograph Printed Circuits, Ltd. v. Methode Elecs.,
Inc., 285 F. Supp. 714 (N.D. Ill. 1968)).
136. See, e.g., Callahan v. Wallace, 466 F.2d 59 (5th Cir. 1972); Doss v. Long, 93 F.R.D. 112 (N.D. Ga. 1981);
Florida Businessmen for Free Enter. v. Florida, 499 F. Supp. 346 (N.D. Fla. 1980), aff’d sub nom. Florida Businessmen for Free Enter. v. Hollywood, 673 F.2d 1213 (11th Cir. 1982).
137. See, e.g., Gerstein v. Pugh, 420 U.S. 103 (1975); Marcera v. Chinlund, 91 F.R.D. 579 (W.D. N.Y. 1981).
138. See, e.g., Institutionalized Juveniles v. Secretary of Public Welfare, 78 F.R.D. 413 (E.D. Pa.), rev’d on other
grounds, 442 U.S. 902 (1978); Kendall v. True, 391 F. Supp. 413 (W.D. Ky. 1975).
139. See, e.g., In re Alexander Grant & Co. Litig., 110 F.R.D. 528 (S.D. Fla. 1986). The plaintiff successfully
sought certification of a defendant class in an action charging violation of federal securities and RICO laws; court
indicated that the “certification of defendant classes has gained considerable acceptance in securities fraud litigation.”
Id. at 533. See also In re Itel Sec. Litig., 89 F.R.D. 104 (N.D. Cal. 1981) (court indicated that the existence of a plaintiff
class often enhances the likelihood of certification of a defendant class).
140. Cooper, supra note 6, at 31. On this topic, Professor Cooper also raised a series of questions about how issues classes work. Given the absence of issues classes in our study, we cannot address those questions.
141. See 7B Wright et al., supra note 56, § 1790, at 268.
142. Id.
143. Halderman v. Pennhurst State School & Hosp., 612 F.2d 84, 109 (3d Cir. 1979) (finding certification of the

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Additionally, case law also reveals that subclasses have been used in E.D. Pa.,147 S.D.
Fla., 148 N.D. Ill.,149 N.D. Cal. 150 and in a variety of substantive case types.
class for purposes of determining liability entirely proper in an action seeking injunctive relief against the continued
maintenance of state school and hospital facility catering to persons suffering from mental retardation); Samuel v.
University of Pittsburgh, 538 F.2d 991, 995 (3d Cir. 1976) (finding decertification of a class action in a case attacking a
state-wide residency rule to be in error when the court could have used Rule 23(c)(4)(A) and (B) to better manage the
class); McQuilken v. A&R Dev. Corp., 576 F. Supp. 1023, 1028, 1032 (E.D. Pa. 1983) (utilizing Rule 23(c)(4)(A) to
limit the issues in a class action to recover damages to class members’ property by construction activity); Griffen v.
Harris, 83 F.R.D. 72, 74 (E.D. Pa. 1979) (holding that in light of Rule 23(c)(4)(A) the district court should reconsider
its prior ruling on class certification, in an action challenging the Department of Housing and Urban Development
administration of rent supplement program, as it pertains to damages); Swarb v. Lennox, 314 F. Supp. 1091, 1099
(E.D. Pa. 1970) (ordering class certification for a limited class with limited issues in a case involving the legality of the
Pennsylvania judgment by confession practice), aff’d, 439 U.S. 1012 (1979).
144. Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985) (reversing the district court’s decision to deny class
certification in a suit brought for the denial of Medicaid benefits; court should have considered Rule 23(c)(4)); In re
Nissan Antitrust Litig., 577 F.2d 910, 913 (5th Cir. 1978) (affirming district court’s decision to separate out certain
issues for class treatment in an antitrust action), cert. denied, 429 U.S. 1017 (1979).
145. Denberg v. United States, 696 F.2d 1193, 1207 (7th Cir. 1983) (finding that although the district court did not
have jurisdiction over the action challenging decision of the Railroad Retirement Board to deny benefits to husbands
of retired railroad workers, it was appropriate for the district court to utilize Rule 23(c)(4)(A) in order to separate out
particular issues for class treatment), cert. denied, 466 U.S. 926 (1984); Barkman v. Wabash, Inc., No. 85-C-611, 1988
U.S. Dist. LEXIS 421, at *2, 8 (N.D. Ill. Jan. 19, 1988) (finding the use of Rule 23 (c)(4)(A) appropriate in a securities
action); Skelton v. GMC, 1985-2 Trade Cas. (CCH) ¶66, 683 (N.D. Ill. 1985) (holding that the common issue appropriate for class-wide treatment in a warranty case is the issue of whether a design or manufacturing defect
breached the implied warranty of merchantability). But see In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1297 (7th
Cir. 1995) (reversing district court’s decision to certify a class action as to the issue of negligence only in a product
liability/negligence suit because district judge “exceed[ed] the permissible bounds of discretion in the management of
federal litigation”), cert. denied, No. 95-147, 1995 U.S. LEXIS 6153 (Oct. 2, 1995).
146. Valentino v. Carter-Wallace, Inc., No. C94-2867, 1995 U.S. Dist. LEXIS 9938, at *1-2 (N.D. Cal. Mar. 15,
1995) (certifying pursuant to Rule 23(c)(4)(A) specific common issues for class treatment in a product liability/negligence suit); Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 453 (N.D. Cal. 1994) (excluding
plaintiff’s deterrence claims for class certification in a case under the Americans with Disabilities Act); In re Activision
Securities Litig., 621 F. Supp. 415, 439 (N.D. Cal. 1985) (certifying defendant underwriter class with respect to particular issues); In re Gap Store Sec. Litig., 79 F.R.D. 283, 308 (N.D. Cal. 1978) (certifying defendant class of underwriters as to particular issues); I.M.A.G.E. v. Bailar, 78 F.R.D. 549, 559 (N.D. Cal. 1978) (bifurcating issues in a civil
rights action pursuant to Rule (c)(4)(A)). But see In re Dalkon Shield IUD Prod. Liab. Litig., 693 F.2d 847, 855 (9th
Cir. 1982) (holding that “the few issues that might be tried on a class basis in this case balanced against issues that
must be tried individually, indicate that the time saved by a class action may be relatively insignificant”), cert. denied,
459 U.S. 1171 (1983).
147. Samuel v. University of Pittsburgh, 538 F.2d 991, 996 (3d Cir. 1976) (holding that the district court abused
its discretion by not investigating into the possible usefulness of subclasses before decertification was ordered); Williams v. Philadelphia Hous. Auth., No. 92-7072, 1993 U.S. Dist. LEXIS 8826, at *29 (E.D. Pa. June 30, 1993)
(certifying a subclass in a case against the Housing Assistance Program); Troutman v. Cohen, 661 F. Supp. 802, 813
(E.D. Pa. 1987) (certifying subclasses for class action involving challenges to the Medical Assistance Skilled Care
Regulations); Pennsylvania v. Int’l Union of Operating Eng’r, 469 F. Supp. 329, 391 (E.D. Pa. 1978) (certifying subclasses for a discrimination class action); Santiago v. City of Philadelphia, 72 F.R.D. 619, 629 (E.D. Pa. 1976)
(certifying subclasses in a civil action class action); Dawes v. Philadelphia Gas Comm’n, 421 F. Supp. 806, 826 (E.D.
Pa. 1976) (certifying subclasses in an action challenging certain policies and practices of the Philadelphia Gas Works);
Sommers v. Abraham Lincoln Fed. Sav. & Loan Ass’n, 66 F.R.D. 581 (E.D. Pa. 1975) (certifying subclasses in a
Sherman antitrust class action); Dorfman v. First Boston Corp., 62 F.R.D. 466, 476 (E.D. Pa. 1973) (certifying two

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Data on issues classes and subclasses. Our results uncovered no issues classes in the four districts. The cases that were certified appeared to encompass all the issues in question. We had,
for example, no mass tort cases where issues of fault and general causation might be suitable for
class treatment, leaving other issues, for example, proximate cause or damages, to be determined on a case-by-case analysis. Finding no issues classes is not surprising from a judicial
economy standpoint because issues classes can create additional litigation and courts are likely
to use issues classes only when the advantages outweigh the disadvantages of promoting additional litigation.151
Our data revealed a total of ten subclasses in the four districts. Each district except for one
certified three subclasses. Securities cases had the largest number of subclasses—five. Four of
the remaining five subclasses were found in civil rights cases (see Figure 35). In these cases subclasses were often used to separate out different class members who either purchased stock under different circumstances than the rest of the class or were discriminated against by a defendant during a different time than the class period.
Our data showed that judges have used subclasses but not issues classes. It appears that
courts, or at least the ones in the four districts, were more comfortable in certifying subclasses in
cases where members held divergent or antagonistic interests. Allowing such subclasses in effect
brings to closure all issues in a class, thereby terminating the entire litigation.
Background on conflicts of interest. As a general principle, class representatives’ interests
.
Federal Rule of7
Civil Proceshould not conflict with the interests of the class.152 Pursuant to l Corp
a
dure 23(a)(3) “[o]ne or more members of a class may sue orutisued as representative parties on
be c
, 201
race mber 12
behalf of all only if . . . (3) the claims or defenses utthe representative parties are typical of the
. Nof
te

ep
ert v
amb ved on S
in L
i
te action).
ciclassd 423 arch
subclasses in a securities
6
148. Appleyard v. Wallace, 754 F.2d 955 (11th Cir. 1985) (vacating district court’s decision to deny class certifica15-5
tion and suggestingo. the court should have considered using Rule 23(c)(4)). But see Mathews v. Diaz, 426 U.S. 67,
that
N

71 (1976) (finding that the district court in the Southern District of Florida lacked jurisdiction over the class action
involving the Social Security Act and the class and subclass as certified were too broadly defined).
149. Williams v. State Bd. of Elections, 696 F. Supp. 1559, 1560 (N.D. Ill. 1988) (certifying subclasses in a civil
rights class action); Technograph Printed Circuits, Ltd. v. Method Elec., Inc., 285 F. Supp. 714, 725 (N.D. Ill. 1968)
(certifying subclasses in a patent class action).
150. American Timber & Trading Co. v. First Nat’l Bank, 690 F.2d 781, 786 n. 5 (9th Cir. 1982) (finding subclassification appropriate in a usury class action suit); Valentino v. Carter-Wallace, Inc., No. C 94-2867, 1995 U.S. Dist.
LEXIS 9938, at *1 (N.D. Cal. March 15, 1995) (certifying subclass in product liability/negligence class action); Sullivan v. Chase Inv. Serv., Inc., 79 F.R.D. 246 (N.D. Cal. 1978) (certifying subclasses in class action against brokerage
houses). But see Betts v. Reliable Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir. 1981) (finding that the district court had no authority to create a subclass in a Section 1983 class action violation); Mendoza v. United States,
623 F.2d 1338, 1349–50 (9th Cir. 1980) (affirming district court’s decision to deny plaintiffs’ subclass motion), cert.
denied, 450 U.S. 912 (1981); Wilkinson v. FBI, 99 F.R.D. 148 (N.D. Cal. 1983) (denying subclass in constitutional
class action challenge for failure to satisfy the numerosity requirement).
151. For a discussion of the advantages and disadvantages of issues classes, see 7B Wright et al., supra note 56,
§ 1790, at 271.
152. But see Zinberg v. Washington Bancorp, Inc., 138 F.R.D. 397, 407 (D.N.J. 1990) (the court found that the
“[f]act that the named plaintiff in a securities fraud action purchased her stock through a broker who was her stepfather and who resided in the same household with her did not produce a conflict of interest between her and other
members of the class nor show that she had access to inside information not available to the general public, and did
not preclude finding that her claims were typical of those of members of the class.”)

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claims or defenses of the class . . . .” In some instances a party’s claim of representative status
will only be defeated if the conflict goes to the very subject matter of the litigation. 153
Data on conflicts of interest. In the majority of cases where typicality of the class was disputed, defendants generally contended that plaintiffs’ claims were distinct from those of the
class they sought to represent, or were subject to a defense unique to the representative. Arguments addressing actual conflicts of interest between the representative and class members occurred infrequently. Such arguments were raised in general terms and usually addressed the
possibility of conflicts between class representatives and absent class members or alleged
conflicts in plaintiffs’ proposed class definition.
Under Rule 23(a)(4), a representative party is expected to fairly and adequately protect the
interest of the class. In some instances, defendants might allege that a representative cannot satisfy the requirements of Rule 23(a)(4) if a potential conflict of interest exists with the other class
members. The ability of the representative to represent the class was often disputed on the
ground that the named plaintiffs had a potential conflict of interest with other class members.
The general types of conflicts found in our study included but were not limited to:
1. Cases generally alleging inadequacy of representation due to antagonistic interests of the class representatives to class members whose rights and interests they purport to represent (e.g., named
plaintiffs wanted to withdraw their pension contributions whereas other members wanted to wait
for monthly retirement benefits).
.
2. Cases where the conflict centered around some class members not l Coentitled to the same relief.
being rp
017
ica
3. A case where the dispute centered around the competition between 12, counsel and another
ceut ber lead 2
utra e
plaintiff’s lawyer to represent the class. Lead counsel for tthe class submitted a proposal to cont v. N$325,000 capm costs and expenses to be reimep on
tinue to serve as lead counselmber
a that included aon Sthe cap committed counsel to seek an early
bursed from the fund.in L
Plaintiff’s counseled
iv argued that
ted
cirepresented a3 arch incentive to settle the case and that lead counsel had bought
settlement and
powerful
42
an interest in the5-56 and that interest conflicted with the class.
. 1 litigation
No
4. A case where counsel sought to act simultaneously as the class representative and as class counsel.
A potential conflict of interest existed between her duty as representative to the class and her economic interest in attorneys’ fees.

Courts addressed these conflicts in a variety of ways, sometimes substituting class representatives (see supra § 4(b)), sometimes denying class certification, and sometimes overruling the
objection.

153. 7A Wright et al., supra note 56, § 1768, at 327 & Supp. 1995 (citing Michaels v. Ambassador Group, Inc., 110
F.R.D. 84 (E.D.N.Y. 1986) (“any conflict of interest arising between members of proposed class in an action for alleged violations of Securities Exchange Act section 10(b), from different times of purchase and sale, was minimal
when compared to substantial questions common to all members of class, and any conflicts were too peripheral to
mandate denial of class certification motion”); United States v. Rhode Island Dep’t of Employment Sec., 619 F.
Supp. 509, 513 (D.R.I. 1985) (“[T]he fact that the class representative may be entitled to back pay in an amount different from that owed other class members does not automatically destroy the adequacy of her representation, nor
create any conflict among class members going to the ‘very subject matter of the litigation.’”)).

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(10) Notice
(a) What types of notice, in what time frame, have been required in (b)(1), (b)(2), and
(b)(3) actions?
Background. Two different situations may call for notice: class certification and settlement. Regarding notice of certification, Federal Rule of Civil Procedure 23(c)(2) mandates that, “[i]n any
class action maintained under subdivision (b)( 3), the court shall direct to the members of the
class the best notice practicable under the circumstances, including individual notice to all
members who can be identified through reasonable effort.” In (b)(1) and (b)(2) actions, district
judges have discretion to provide notices whenever they deem it necessary “for the protection
of the members of the class or otherwise for the fair conduct of the actions.”154 The Manual for
Complex Litigation, Third indicates that notice of certification “may at times be advisable for
(b)(1) and (b)(2) classes.”155
Regarding notice of settlement, Rule 23(e) provides, without exception, that “notice of the
proposed dismissal or compromise shall be given to all members of the class . . . .” Courts and
commentators have concluded that “notice of [voluntary] dismissal or compromise is mandatory in all cases under Rule 23.”156
Rule 23 does not specify a time within which notice must be sent, but the Manual for Complex Litigation, Third suggests that “notice should ordinarily be given promptly after the certification order is issued.” 157 In some instances, class members or theirp.
or representatives and,
perhaps, defendants may have found it to be in their interests tocal notice, 20example, when
i delayC 2, for 17
eut er 1
is imminent. If the class prevails on liability,
a settlement158 or disposition of the liability issuesutrac
N
mb
the ruling might have the effect of shifting t v.
of paying
er the burden Septe the cost of notifying the class. 159
n
mb
If the case settles, the parties can use the ived o agreement to specify their allocation of noin La rch settlement
ed not prevail on liability, however, the ruling will not bind class memtice costs. If the classtdoes
ci
23 a
564of class certification. 160
bers who did not have notice
15No.
In its 1985 study, the ABA Section of Litigation’s Special Committee on Class Action Improvements observed that Rule 23 imposes notice requirements exceeding those demanded by
the Constitution and that Rule 23(c)(2) “frequently obliges a court to require the class representative to advance huge sums of money as a precondition to further prosecution of the action.”161 The proposed amendment to Rule 23 that the advisory committee circulated in 1993
would give the district judge discretion to require “appropriate notice” (see Appendix A, Pro154. Fed. R. Civ. P. 23(d)(2). See 7B Wright et al., supra note 56, § 1786, at 196.
155. MCL 3d, supra note 34, § 30.211, at 224. The purpose of the notice is to “help bring to light conflicting interests or antagonistic positions within the class . . . and dissatisfaction with the fairness and adequacy of representation.” Id. Similarly, Newberg and Conte assert that notice in such cases is “frequently advisable.” 2 Newberg &
Conte, supra note 55, § 8.05, at 8-18.
156. 7B Wright et al., supra note 56, § 1797, at 365 & n.48.
157. MCL 3d, supra note 34, § 30.211, at 224.
158. Id. at 224–25.
159. 2 Newberg & Conte, supra note 55, § 8.09, at 8-33.
160. Failure to give adequate notice may mean that members of the class will not be bound by the judgment. 7B
Wright et al., supra note 56, § 1789.
161. ABA Special Committee Report, supra note 10, at 208 (citing Eisen v. Carlisle & Jacqueline, 417 U.S. 156
(1974)).

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posed Rule (1993) 23 (c)(2)). In making that decision, the judge would be directed to take into
account a host of factors, including “the expense and difficulties of providing actual notice to all
class members, and the nature and extent of any adverse consequences that class members may
suffer from a failure to receive actual notice.” 162 In this subsection we will present data on the
current practices in the four districts, relate those practices to the current rules, and discuss the
relevance of the data to proposed reforms.
Data. Notice of class certification or of the settlement or voluntary dismissal of a class action
was sent to class members in at least 76% of the certified class actions in each of the four districts
(see Figure 36). Although notice of certification before settlement is not required in (b)(1) and
(b)(2) actions, the majority of such cases included some notice (see Table 35). Generally the
notice in those cases was notice of settlement, but a sizable minority included personal notice of
class certification.163 As noted above, Rule 23(e) calls for notice of settlement in all certified
class actions. In six settled (b)(2) class actions, however, no notice to the class or hearing regarding the settlement was indicated on the record.164
In the (b)(3) certified class actions, notice of certification or settlement was sent in all but six
of the cases in the study. 165 As we discuss below in this subsection, notice appeared to have
been delayed in sixteen certified (b)(3) actions in which the first notice was a notice of settlement. Our data do not reveal reasons for the lack of notice, but there are any number of possibilities, ranging from concerns about the cost of notice to the parties’ inadvertence or neglect. In
p.
five of the six cases, the failure to notify the class of the certification appears to have deprived
l Cor 2017
a
class members of an opportunity to participate in the action tic
,
u before a settlement or a ruling on
race of mber 12 of class-wide ef166 and may as well have deprived the defendants
ut
the merits
v. N Septe a final judgment
fect. 167 For further discussion of notice ersettlement classes, see infra § 14(a).
bin t
on
am
Discussion. Failure d iprovide noticevto d class in these cases seems to violate Rule
to n L
chi e the
e notice be provided promptly in all cases. The omission may be the ret
3 ar
23(c)(2)’s mandateci
that
5642
sult of a conscious litigation strategy. In the words of one commentator, postponing notice may
15No. strategy and ingenuity,” designed to obtain a ruling on the merits before
represent “litigation
providing notice.168 In this way, class representatives might avoid the burden of paying the cost
162. Cooper, supra note 14.
163. In all four districts notice was issued in 37 cases certified in whole or in part under (b)(1) and (b)(2). Data was
available regarding the event associated with notices in 31 cases. Of those, 23 were notices of settlement and eight
were notices of certification. Only two of the eight cases with notices of certification had been certified in part under
(b)(3). All eight cases included personal notice and four of those also included notice by publication. See also discussion of (b)(1) and (b)(2) classes infra § 11(b).
164. In four of the cases injunctive relief was included in the final order and in one of those cases a $10,000 payment to the named plaintiff was part of the settlement. In one of the other two cases, the court simply noted that the
parties “settled out of court.” The other case was dismissed “for statistical purposes” while the parties worked out
the details of their settlement, with the parties to report to the court if there was any difficulty reaching settlement.
165. One of the six cases was terminated by remand to the state court. One was dismissed by stipulation without
any damages or other remedy indicated and without any indication of court approval. The other four cases, one of
which was certified as both a (b)(2) and a (b)(3) class, had been terminated by dismissal or summary judgment.
166. One of the purposes of the notice is to give the absent class member an opportunity to “enter an appearance
through counsel.” Fed. R. Civ. P. 23(c)(2).
167. See supra note 160.
168. 2 Newberg & Conte, supra note 55, § 8.09, at 8-33.

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of notice 169 and both parties might avoid the expense and inconvenience of providing two sets
of notices to the class. Delays in notice could also, of course, be the result of any number of
other factors, such as the need to gather information about the class, inadvertence, neglect, the
press of business, or any of the myriad reasons for delays in litigation.
Data. To examine the extent of delays in notice, we looked at the length of time between
class certification and the first notice to the class (other than a notice of settlement). We found
some variation. In the fastest of the four districts on this point, the median time span was 2.2
months between certification and notice, but 25% of the cases in that district took more than
16.3 months (see Figure 37). In the other districts, the median times were 3.3, 3.8, and 8.3
months (see Figure 37). In all four districts at least 25% of the certification notices were issued
more than six months after the class was certified. We have no direct data on the reasons for
those delays.
The time from ruling to notice of settlement may shed additional light on the extent to which
settlement avoids the need for the class representatives or their attorneys to advance the costs of
notice. In 27 (38%) class actions that were certified and later settled (i.e., excluding settlement
classes), the first notice sent to the class was a notice of the settlement. Overall, 16 (59%) of
those 27 cases had been certified as (b)(3) classes. The median elapsed time between certification and notice was almost three years in one district, more than a year in two other districts,
and about three months in the fourth. The number of cases in which such time gaps occur is a
.
relatively small proportion—less than 13%—of all certified and settledorp actions. Neverthel C class 2017
a
less, the numbers are sufficient to show that the practice eutic and that2, time gap between
occurs
the
rac mber 1
ut
certification and notice of settlement can be quite wide.
v. N Septe
Discussion. The combined effect of ert
b finding no notice at all in six certified (b)(3) actions and
on
am
finding delayed notices d in L certified (b)(3) cases that eventually settled suggests that the
sixteen ch ved
e in or guideline iniRule 23(c)(2) has in some cases allowed the parties to
r
cit
lack of a precise timetable 423 a
56 omissions thwart the intent of the advisory committee that class
postpone or avoid notice. Such
15No. promptly of the class certification so that they can effectively exercise their
members be notified
rights to participate or opt out of the action. 170 Omitting notice also has the effect of avoiding
the preclusive effect of a judgment for a defendant against a class.
These practices may be an effort to achieve informally, without a rule change, the result that
the ABA Section of Litigation’s special committee also sought, namely, recognition of notice
costs as potential barriers to access to the courts and flexible allocation of the cost of providing
notice. Addressing the merits of a case before certification might provide a mechanism for allocating the costs of notice.

(b) In what form was the notice issued, who paid the cost, and does the cost of notice
discourage legitimate actions?
Background. Rule 23(c)(2) requires individual notice in (b)(3) actions for class members “who
can be identified with reasonable effort.” Others are to be given “the best notice practicable un169. Id.
170. See, e.g., Frankel, supra note 5, at 41 (“But it seems obvious that if notice is to be effective—if class members
are to have a meaningful opportunity to request exclusion, appear in the action, object to the representation, etc.—the
invitation must go out as promptly as the circumstances will permit.”); 2 Newberg & Conte, supra note 55, § 8.09, at
8-32 to 8-33.

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der the circumstances.” The Manual for Complex Litigation, Third states that “[p]ublication in
newspapers or journals may be advisable as a supplement.”171 As discussed ( see supra text accompanying note 161), Eisen v. Carlisle & Jacqueline172 requires that class representatives be
responsible for the cost. The Manual for Complex Litigation, Third points out that “[t]he manner of giving notice can encourage or discourage the assertion of certain claims, or can be so
costly and burdensome as to frustrate plaintiffs’ ability to maintain the action.”173 Commentators have asserted that the effect of Eisen “is to make the initiation of class actions more burdensome, particularly when they are brought under Rule 23(b)(3) and thus require individual notice to all identifiable class members.” 174
Data. The data indicate that the parties and judges follow the dictates of the Eisen line of
cases by providing individual notice in almost all certified (b)(3) actions in which any notice was
provided (see Table 36).175 In at least two-thirds of the cases in each of the districts, the individual notices were supplemented by publication in a newspaper or other print medium. Other
forms of notice, such as broadcasting or use of electronic media, were rarely or never used. A
number of cases involved posting of notices at government offices, a form of notice that was
particularly prevalent in (b)(2) actions.
The median number of recipients of notice of certification or settlement or both was substantial, ranging from a median of approximately 3,000 individuals in one district to a median of
over 15,000 in another (see Figure 38). In all districts the number of notices sent to individuals
.
equaled or exceeded the estimated number of class members. Generally,p
7
l Cor parties1estimated the
a
size of the class during the certification process, before noticestic sent. 2, 20
ceu wereer 1
a
b
Data on the costs of implementing notices . Nutr
were difficult to obtain. Whether the data are reptisvdoubtful. In ptem the four districts we were unethree of
er
resentative of all cases in the four districts
on S
amb of the cases. Across the districts, in the cases for which
able to obtain cost data d ihalf or morehived
for n L
r
c te 42 costs c
data were available, ithe median 3 a of distributing notices exceeded $36,000 per case and in
56 costs were reported to be $75,000 and $100,000 per case.176 In
two of the districts 15the median
No.
at least 25% of the cases in each district, the cost of notice exceeded $50,000 per case and in two
of the districts, such costs exceeded $100,000 per case. These data are best viewed as a collection of anecdotes and estimates.
Who paid the costs? The short answer is that both plaintiffs and defendants paid. The practices varied in the four courts, but overall defendants paid more than plaintiffs in two courts,
slightly less than plaintiffs in one, and considerably less in the fourth. Defendants paid all or
part of the costs in 62%, 27%, 58%, and 46% of the cases in E.D. Pa., S.D. Fla., N.D. Ill., and
N.D. Cal., respectively. The data are consistent with the data on the timing of notice (discussed
171. MCL 3d, supra note 34, § 30.211, at 225.
172. 417 U.S. 156 (1974).
173. MCL 3d, supra note 34, § 30.211, at 226.
174. 7B Wright et al., supra note 56, § 1788, at 234.
175. In only one case was it clear that notice other than individual notice was used. In that case, notice was communicated to an estimated 1 million Sears Auto Center repair customers by newspaper publication and by posting
notices at all Sears repair centers. In another case, the file was incomplete, but there was no record of notice other
than by publication.
176. These costs refer to notice of certification or settlement or both, depending on what type or types of notice
were issued in each case.

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supra in § 10(a)). Delays in issuing notice apparently led to shifting the cost of notice from
plaintiff to defendant. Our data cannot tell us whether the delays reflected a desire to avoid notice costs or some other motivation.
Do these requirements discourage the pursuit of class actions as the editors of the Manual
for Complex Litigation, Third and Professors Wright, Miller, and Kane assert? The available
data on costs suggest that the costs in some cases are high enough to deter litigants or law firms
from pursuing class actions, especially where a number of small claims are spread among a large
number of class members. Costs of notice may also induce plaintiffs to define a class more narrowly than if costs were not a factor. The larger the class, the costlier the notice. The data on
lack of notice in some cases and delays in others suggest that the impact of the cost is sufficient
to give parties an incentive to avoid notice, but we do not have direct data showing that the cost
of notice is the source of that problem.

(c) How much litigation of notice issues occurred?
Data. In each of the four districts, litigation of notice issues occurred in less than one-quarter of
the cases in which notice of certification or settlement was communicated to a certified class (see
Figure 39). Overall, twenty-one objections were filed in 18 cases, fourteen by class members,
two by class representatives, three by defendants, and two by others.
The most frequent type of objection, occurring eleven times, was to the content of the notices, that is, the failure to include information about an item the objector .
orp deemed important.
17
Three of those eleven objectors complained specifically abouticallack of information concernthe C
eu information 0
cthatttheber 12, 2in the notice was
ing attorneys’ fees. Others had more general complaints
tra
v. Nu Septem
inadequate to inform class members. Sixtobjections complained that the notice had not been
ber
received in a timely manner, Lam
sometimes arriving n
d o after an opt-out period had expired or the
ch ve
ed in 3 abeen iheld. Two objectors complained about the exclusion
hearing on settlement approval had r
cit
2
or inferior treatment 5-564
of a subgroup. (Objections to the substance of the settlement that were
.1
presented at theo
N settlement approval hearing will be addressed in § 14(c), infra.)
Courts responded to all but six of the twenty-one objections. Seven were heard and rejected,
six were heard and accepted in whole or in part, one was withdrawn, and one was handled
through correspondence from the plaintiffs’ attorney.
Discussion. Overall, the number of objections as well as their tenor and force was not great.
Whether that is a sign that the process is working or not is hard to judge. Objections to notice
do not appear to represent a significant mechanism for addressing or correcting the types of
errors and omissions discussed supra in § 10(b) or infra in § 10(d).

(d) Did the notices of proposed settlements contain sufficient detail to permit intelligent analysis of the benefits of settlement?
Background. The Manual for Complex Litigation, Third recommends that a notice of proposed
settlement include a description of the essential terms of the settlement, information about attorneys’ fees, disclosure of any special benefits for class representatives, specification of the time
and place of the hearing, and an explanation of the procedure for allocating and distributing the
settlement.177 A combined notice of certification and settlement, as the first notice to the class,
should include information about opt-out rights and deadlines as well as sufficient information
177. MCL 3d, supra note 34, § 30.212, at 228. Cf. 2 Newberg & Conte, supra note 55, § 8.32, at 8-105.

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to allow the recipient to make an intelligent choice about opting out. A notice of settlement that
is the second notice—that is where the class has already been given notice of certification and
the opportunity to opt out—should communicate sufficient information to support an intelligent
appraisal of whether to accept or oppose the settlement and whether to file a claim.
In either of the above instances, the putative or actual class member would need sufficient
information to assess the impact of the settlement on the member’s personal situation. The ultimate question in a rational, economic analysis would be: What can I expect to recover? The
class member needs to know this to compare actual losses and determine whether to participate
in the settlement or oppose it. To estimate a personal recovery, one needs to know at least the
net dollar amount of the settlement and the estimated size of the class with which one can expect
to share the net settlement.178 Newberg and Conte state that it is “unnecessary for the settlement distribution formula to specify precisely the amount that each individual class member
may expect to recover.”179 Courts have not demanded precision but have called for estimates of
monetary benefits, fees and expenses, and individual recoveries.180
Language in a notice should be clear and direct.181
Data. We examined the settlement notices in all of the certified settled cases to determine
whether they communicated the type of information described above. Settlement notices in the
cases did not generally provide either the net amount of the settlement or the estimated size of
the class. Rarely would a class member have the information from which to estimate his or her
p.
individual recovery. In only five cases, all of which were in two districts,rdid the notice include
l Co 2017
information about the size of the class. As to the net amount ticthe settlement, in one district a
,
u of a
race mber 12 and in the fourth
uttwo districts, a fifth did,
third of the notices included such information, in
v. N Septe
district, a tenth. Notices included mbert
information about the gross amount of the settlement in 64%
n
a
ed o
to 90% of the cases (see d in L
Figure 40).
edisclosures archiv
cit
Missing from most
423 was information about the dollar amount of attorneys’ fees,
5-56 other expenses. In only one district did more than half of the nocosts of administration, and
o. 1
tices include N dollar amount of attorneys’ fees; at the other end of the range, in one district
the
only 10% of the notices included such information (see Figure 41). In all four districts, however,
more than two-thirds of the notices included information about either the percentage or the
amount of attorneys’ fees (see Figure 41). If the fees are calculated as a percentage of the gross
settlement and not as a percentage of the net amount (practices differ), then information about
the fee percentage and the gross amount of the settlement would suffice because a class member
could calculate the fees by multiplying the gross settlement by the percentage to be allocated to
178. An estimate of the individual shares in the settlement or the percentage of damages to be compensated
would, of course, serve the same purpose.
179. 2 Newberg & Conte, supra note 55, § 8.32, at 8-107.
180. Grunin v. International House of Pancakes, 513 F.2d 114, 122 (8th Cir.) (“the notice may consist of a very
general description of the proposed settlement, including a summary of the monetary or other benefits that the class
would receive and an estimation of attorneys’ fees and other expenses”), cert. denied, 423 U.S. 864 ( 1975); Boggess v.
Hogan, 410 F. Supp. 433, 442 (N.D. Ill. 1975) (“the notice should . . . include the best available information concerning fees and expenses together with an estimated range of unitary recovery”).
181. See, e.g., Avery v. Heckler, 762 F.2d 158, 165 (1st Cir. 1985) (affirming “a judicial decision that favors plain
and direct English” in a proposed notice). See generally 2 Newberg & Conte, supra note 55, § 8.39 (discussing the
language and content of notice, emphasizing the need for clear, objective language).

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fees. Information about the costs of administration and other expenses, including the attorneys’
legal expenses for discovery and other pretrial activity, are infrequently included in the notice of
settlement (see Figure 42).182
Notices generally included sufficient information on the nonmonetary aspects of the settlement. In each district, more than 75% of the notices presented information on a plan of distribution for the proceeds and also included information and forms for submitting a claim. When
equitable relief was included in the settlement, it was generally summarized in the notice. Optout rights, where applicable, were stated in the vast majority of notices and all notices in all four
districts specified the date and time for a hearing on approval of the settlement.
Discussion and call for research. Notices did not appear to include sufficient information for
an individual class member to appraise the net value of a settlement to the class or to calculate
an expected personal share in the settlement. Is it reasonable to expect that additional information could be provided? It appears that much of the needed information was available at other
stages of the litigation and might have been calculated or estimated in the notice of settlement.
For example, the exact size of the class might not have been determined until after notices had
been sent, yet the parties frequently offered estimates of class size in seeking certification. The
Rule 23(a)(1) requirement that “the class be so numerous that joinder of all members is impracticable” demands that the parties and the court consider the size of the class. Moreover, in cases
where notice of certification had been sent before a settlement, information about actual class
.
size was available based on the number of notices sent and opt outs lreceived.
Corp 017
ica
2
What about attorneys’ fees? The parties might argue eutinformation about attorneys’ fees
acthat b r 2,
rapproved andethe1court entered an order
ut
was not available until after the settlement has N
tem
v. been Se caveats, may have been the most that
awarding fees. This is technically mbert estimate, withp
true. An
n
n La ch ved o
could have been presented. But courts igenerally awarded attorneys’ fees in the amount reed iand thoserrequests were generally submitted to the court before the
cit
quested by the plaintiffs183 423 a
6
settlement approval15-5 Including the amount of the fee request in the notice might call for
o. ofhearing.
N
earlier calculation the estimated fees. Where the fees are a percentage of the settlement, the
actual calculation—or a clear statement of the formula—would avoid any problems a class member might have in applying the formula.
Notices generally included the technical information about distribution plans, claims procedures, opt-out rights, hearings, and objections. Counsel in these cases often followed routine
formats for developing notices and presenting settlement approval information to the court.184
Because the practice appears to be routinized, one would expect that counsel would follow any
explicit guidelines established through the rule-making process.
Having read the notices in these cases presses us to make an additional observation. Many,
perhaps most, of the notices present technical information in legal jargon. Our impression is
that most notices are not comprehensible to the lay reader. A content analysis of the samples
could test this impression. For any researchers who wish to take up this call for further research,
182. The median percentage of the gross settlement devoted to administrative costs was 2% across the four districts.
183. See discussion and data at infra § 16(d).
184. 2 Newberg & Conte, supra note 55, § 8.32, at 8-105 (“[R]ule 23(e) notices are becoming standardized in
format . . .”). For sample forms, see id. at Appendix 8-2. See also MCL 3d, supra note 34, § 41.4.

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we can make available a file of most or all of the notices we encountered in the four districts.
Courts and commentators have agreed that notices should communicate the essential information in “plain English.”185

(11) Opt Outs
(a) Number of opt outs and relationships with subject areas and size of claims
Background. The questions in this section are: How frequently do members opt out of (b)(3)
classes? Is opting out related to specific subject areas or size of typical individual claims? The
background question, which our data cannot answer directly, is: Why do class members opt
out?
The choice of opting out may arise in two distinct contexts: after certification but before settlement or after a settlement has been proposed. As the discussion of notice indicates (see supra
§ 10), notice of certification was often deferred until after a settlement had been reached. We
examined the rates of opting out at each stage separately and in combination and noted some
characteristics of cases with large numbers of settlement opt outs.
Data. At the certification stage, the percentage of certified (b)(3) class actions with one or
more class members opting out was 21%, 11%, 19%, and 9% in the four districts (see Figure 43).
The number of cases in any single nature-of-suit category was too small for meaningful analysis.
p.
Because the advisory committee has asked for data on nature of suit, we present the information
l Cor cannot7
(see Figure 44), but with the caveat that differences among the a
utic categories, 201 support any
race mber 12
generalizations.
t
. Nu
At the settlement stage, the percentage tof cases with eptor more opt-out members was coner v on S one e
b
siderably higher than at then Lam stage. Those percentages ranged from 36% in two disi certificationhived
tricts to 43% in the third and 23 arc fourth (see Figure 45). Again, the number of cases in
cited 4 58% in the
6
each nature-of-suit category does not support detailed analysis of differences (see Figure 46).
15-5
o. opt outs at the certification and settlement stages yields percentages of cerN
Combining the
tified (b)(3) class actions with one or more opt outs ranging from 42% to 50% in the four districts (see Figure 47). These percentages are somewhat lower than the percentage of opt outs
observed in the Georgetown study.186
How many class members opted out in these cases? In all four districts, the median percentage of members who opted out was either 0.1% or 0.2% of the total membership of the class and
75% of the opt-out cases had 1.2% or fewer class members opt out. Again in all four districts,
75% or more of the cases with opt outs had fewer than 100 total opt outs. This left seven cases in
the study with more than 100 opt outs. 187 Two cases had 2,500 and 5,203 members, respectively, who opted out. In both of these cases, objectors who were represented by attorneys ap185. See supra note 181.
186. Georgetown Empirical Study, supra note 88, at 1161 (58% of cases in national study had one or more opt
outs).
187. In five of those seven cases, objectors or class members other than the official representatives appeared at the
settlement approval hearing. Objections filed in the seven cases included objections to the attorneys’ fees (five), insufficiency of the settlement amount to compensate for losses (three), insufficient deterrence (two), disfavoring particular groups in the class (two), and a host of miscellaneous objections, including a single allegation of collusion
among the parties.

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peared at the settlement hearings, a sign that they might be planning further litigation.188 Overall, three of the seven cases with more than 100 class members who opted out were securities
class actions.189
Data regarding opt outs at the settlement stage suggest that there may be a relationship between the average net amount of the settlement and the presence of one or more opt outs (see
Figure 48). The number of cases is too small to yield definitive results and other factors certainly may have affected the decision to opt out, but the direction and magnitude of the relationship in all four districts was similar. The data suggest the possibility that the smaller the average
individual portion of the settlement the larger the number of cases in which one or more parties
opt out.
Discussion. Intuitively, one might expect one of two relationships between the net monetary
award and the decision to opt out. For very large awards, say in a products liability case involving serious personal injuries, one would expect the opt-out rate to increase as the size of the
expected award increases because individuals with more serious than average injuries would be
able to obtain representation and pursue a larger individual award. None of the cases in the
study, however, had median awards of that magnitude (see supra § 1(a)). The largest average net
individual award was $5,331 and the great majority of the awards were below $1,000 (see supra §
1(a)).
For the type of awards in this study—none of which seem high enough to support individual
.
lawsuits on a contingent fee basis ( see supra § 1(a))—one might expect that p members would
l Cor class017
a
have more incentive in the larger cases to remain in the ceutic recover2, 2
class and
an award in the thoura decreases, er 1 have less incentive
ut
b members
sands of dollars. As the size of the net average . N
tem
v settlement recovery, some members may choose
to file a claim. If totally dissatisfiedmbert amount ofSep
with the
the
on
ved
to protest by opting out. Without additional research, we cannot know whether this happened
i La
edinn 3 archicompatible with such a scenario.
ct
in our study, but theidata 42 48 are
Figure
5-56 rates in this study with those in the Georgetown study, published
Comparison of the opt-out
1
No.
more than twenty years ago, showed no increase in the rate of opting out.190 The levels of opt188. The case with 5,203 opt outs was the General Motors Pick-Up Truck Litigation. In re General Motors Corp.
Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir.), cert. denied, 116 S. Ct. 88 (1995). In that case
many of the objectors were represented by a public interest organization, the Center for Auto Safety, or by government attorneys; the settlement approval was reversed on appeal. In the other large case, 2,500 (16%) of 15,818 class
members opted out of a securities class action settlement of $4,119,000 after objecting, through an attorney, that the
amount of the settlement was insufficient. Hooker v. Arvida/JMB, No. 92-7148 (N.D. Ill. filed Oct. 27, 1992). No
appeal was filed in that case and there was no indication in the case file of further litigation, but the presence of the
attorneys and the large number of opt outs indicate the possibility of further litigation by the opt-out members.
189. One of those cases was described in the previous note. In another, In re Oracle Sec. Litig., No. 90-931 (N.D.
Cal. filed March 29, 1990), 115 members (0.0007%) of a class estimated at 164,000 opted out. The only objections
filed in that case were to the amount of attorneys’ fees. The other securities case, Mogul v. Nikken, Inc., No. 92-946
(N.D. Cal. filed March 4, 1992), involved a class of independent distributors of a networking marketing program, not
a public securities offering; 360 (0.01%) members of a class of 28,533 opted out. In that case no objections were presented at the hearing and there is no indication of an independent action by the opt-out members. The settlement
included a mandatory (b)(1)(B) class for refunds for products and an opt-out (b)(3) class for claims based on economic loss arising from the marketing program.
190. See discussion of Georgetown Empirical Study, supra note 88. This portion of the Georgetown study was
based on a national study of selected class actions, more than half of which were securities and antitrust cases. Id. at

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ing out reported in the Georgetown study, in fact, indicate that opting out may have declined
considerably.191

(b) Opt outs in (b)(1) or (b)(2) classes
Data. As a practical matter, putative class members do not opt out in (b)(1) or (b)(2) classes,
with one minor exception.192 In addition, there were four settled class actions with opt outs that
were certified under either (b)(1)(B) (one case) or (b)(2) (three cases) as well as (b)(3). At least in
those cases, the certification of a class on mandatory grounds was not used as a way to evade the
opt-out requirements of Rules 23 (b)(3) and 23 (c)(2).
We also looked for cases that had not been certified under (b)(3) yet appeared to be damage
actions. In four cases, classes were certified under (b)(1) or (b)(2), but not (b)(3), and damages
were awarded on a class-wide basis. None of the cases, however, appeared to represent distortions of the mandatory class categories to evade (b)(3) opt-out requirements. 193

(12) Opt Ins
(a) Opt-in classes
Background and Data. The question raised is whether devices are employed to create what are
essentially opt-in classes, by such means as defining the class to include only those members
who file claims. The Georgetown study found that judges in three cases required an opt-in prorp.
cedure and found that it reduced the class size by 39%, 61%, and 73%.o In that17 the optl C 194 20 study
ica
out procedure generally reduced class size by 10% or aceut
12, raised
r less. Plaintiffs’ rattorneys195 concerns
ut consumermbemembers. Along similar
that the opt-in procedure excluded unsophisticated
v. N Septe class
bert
lines, Newberg and Conte report a small numberonopt-in cases that were approved under state
Lam ived of
court rules.196
ed in
rch
it

c
3a
5642
o. 15

N

1157–59.
191. In the national portion of their study, the Georgetown authors reported that in 31 of the 36 cases for which
information was available, 10% or less of the class opted out. Id. at 1161. In the instant study more than 75% of the
class actions in each district had fewer than 1.2% of the class opt out. Only two cases in the entire study had opt-out
rates above 10%.
192. In one case certified as a (b)(1)(B) class for settlement purposes only, the case file included three letters from
class members indicating their desire to opt out of the settlement. That settlement consisted of an agreement from a
corporate entity to provide supplemental funding if needed to satisfy the terms of a loan to an employee stock ownership plan and did not include a monetary distribution. One objection to the settlement was to the scope of the language in the release given to defendants. There is no indication that the opt-out letters from these class members had
any effect, because the class was defined as a mandatory class and because there was no monetary settlement. The
effectiveness of the notice of opting out would be tested if the opt-out members filed suit against the defendant, but
there was no evidence that this occurred.
193. In all four cases, notice of settlement was provided to the class, but opt-out rights were not provided in the
notice. Three of these cases were ERISA cases involving relatively small retirement funds, each of which appeared to
qualify as a limited fund. The fourth case involved a class of claimants who had filed complaints with a state fair employment commission and whose complaints had not been processed. The relief consisted of an order that the commission process the complaints for all who wished and that they pay $350 to those who chose that remedy. Thus, one
might conclude that the injunctive relief was the primary remedy.
194. Georgetown Empirical Study, supra note 88, at 1148–51.
195. Id. at 1149–50.
196. 3 Newberg & Conte, supra note 55, § 13.22.

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None of the certified class actions in this study defined the class as requiring the filing of a
claim as a precondition to becoming a member of the class, but many used a claims procedure
that, as a practical matter, limited the number who shared in the common fund (see infra
§ 12(b)).197 Combining an opt-out class with a claims procedure appears to have the effect of
precluding further litigation by class members who do not opt out or file claims.

(b) Claims procedures
Background and data. A large number of cases in the study used a claims procedure to distribute the proceeds of a settlement fund to class members. Only those class members who filed
claims shared in the benefits of the settlement, but all class members—as defined in the class
certification order—who did not affirmatively opt out were bound by the judgment. Unfortunately, the parties generally did not report the number of claims received; thus, our data on
claims received are too incomplete to present.
Claims procedures were used in 80% of certified, settled class actions in one district; 77% in
another; 45% in the third; and 42% in the fourth (see Figure 49). Claims procedures were a
standard modus operandi in securities class actions, being used in between 80% and 100% of
these cases in the four districts (see Figure 50). Other types of cases that typically generate
monetary awards also used claims procedures. For example, all three antitrust settlements in the
study did so, as did three of the five employment discrimination cases. On the other hand, only
four of twelve ERISA cases and one of eleven “other civil rights” cases established such procerp.
l Coof claims1is known, the
dures. An advantage of using a claims fund is that once the totalca
ti number 2, 20 7
198 aceu
entire fund can be distributed on a pro rata basis. utr
ber 1

v. N Septem
bert
am
(13) Individual MemberLParticipation on
ed
ed in 3 archiv
cit settlement
(a) Participation before 642
-5
o. 15
(i) Attempts by class members to intervene
N

Background. The question is how frequently do nonrepresentative class members seek to intervene before the settlement stage? Intervention by putative class members can proceed under
either Federal Rule of Civil Procedure 24(a) (intervention of right when granted by statute or
when necessary to protect an interest of the prospective intervenor), Federal Rule of Civil Procedure 24(b) (permissive intervention when a statute provides for conditional intervention or
there are common questions of law or fact), or Federal Rule of Civil Procedure 23(d)(2) (court
may require that notice be given to class members to allow them “to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or oth197. We encountered a few cases filed as statutory opt-in class actions under 29 U.S.C. § 216(b) (1988) of the Fair
Labor Standards Act (FLSA) and under 29 U.S. C. § 626(b) (1988) of the Age Discrimination in Employment Act
(ADEA), both of which employ an opt-in procedure. Notice of filing a complaint is sent to all potential class members
at the outset and they are given an opportunity to file a written consent to join the class. We did not include these
cases in the study because they did not invoke Rule 23 and their structure did not match well with our study design.
A separate study of FLSA and ADEA cases might provide data that would be useful for assessing the viability of a
Rule 23 opt-in procedure.
198. For an illustration of a formula for allocating the fund according to the proportion of each claimant’s damages, see 3 Newberg & Conte, supra note 55, § 12.35, at 12-85 to 12-86.

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erwise to come into the action”). The main purposes of allowing intervention in class actions
are to assure “that the class is adequately represented” and “to enable those class members on
the outside of the litigation to function as effective watchdogs.” 199
Data. Attempts to intervene in cases filed as class actions occurred relatively infrequently in
the study, in 11%, 0%, 9%, and 5% of the cases in the four districts (see Figure 51). Overall,
judges granted about half of the requests (see Figure 51). The most frequently cited basis for
intervention was Rule 24(b) (permissive intervention) (see Figure 52). Rule 23(d)(2) was cited in
only three cases. The authority cited for intervention did not appear to make a difference in the
outcome of the application (see Figure 52).
Data on intervention activity was spread among a wide assortment of nature-of-suit categories and no meaningful conclusions can be drawn about differences among the categories (see
Table 37).
(ii) Attempts by nonmembers to intervene
Data. In all four districts, a total of six nonmembers of an alleged class attempted to intervene in
the class actions. Aside from representing special interests, there was no pattern to their applications.200 Courts granted two of the six applications. All four of those that were denied intervenor status participated in the case at a later stage. In each case the would-be intervenors objected to the settlement and in three cases they filed an appeal, each of which was unsuccessful. 201 In addition to appeals from the denial of an application to intervene,. three proposed inorp
tervenor–plaintiffs filed appeals on the plaintiffs’ side from a denial of an injunction, a denial of
ical C 2, 2017
eut
class certification, and a summary judgment for the defendant. All three1
utrac tember decisions were affirmed
N
on appeal.
rt v.
ep

be
nS
Lam settlement by filing objections and attending set(b) Class member participation in hived o
in
d
arc
tlement hearingscite
423
5 56
The question raised is:-How frequently do nonrepresentative class members appear to contest
o. 1what effect?202 Objections may be presented by any class member who has
N
settlement, and with

not opted out of the litigation, any settling defendant, or any shareholder of a settling corpora-

199. 7B Wright et al., supra note 56, § 1799, at 438–39.
200. Two involved local labor unions, one of which successfully intervened on behalf of its members in a Title
VII action (Stender v. Lucky Stores, No. 88-1467 (N.D. Cal. filed April 22, 1988)) and the other of which was denied
intervention on the side of a class of abused and neglected children who were served by union members. The other
successful intervenor was permitted to intervene in a securities class action for the limited purpose of maintaining an
interpleader action. Sullivan & Long, Inc. v. Scattered Corp., No 93-4069 (N.D. Ill. filed July 7, 1993). Two other
unsuccessful attempts are described in the next footnote.
201. In one case, a bankruptcy trustee for a corporate defendant sought to insure that the corporation did not
waive its claims against accountants and other professionals. The trustee later filed objections to the attorneys’ fee
request and filed an appeal from the fee award, serving as the nominee of several class members. That appeal was
pending at the time of our data collection. Weiner v. Southeast Banking Co., No. 90-760 (S.D. Fla. filed March 22,
1990). In another case, a pro-life coalition sought to intervene as a defendant in an abortion rights case against a defendants’ class of state attorneys general. The court denied the application and the denial was affirmed on appeal,
Keith v. Daley, 764 F.2d 1265 (7th Cir.), cert. denied, 474 U.S. 980 (1985). See also discussion of appeals infra at
§§ 13(c) & 20(a).
202. Cooper, supra note 6, at 33.

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tion.203 Generally, a written objection must be filed before the hearing, and an objector need
not appear at the hearing to have an objection considered by the court. 204
Data. Our data permit us to document the objections raised by class members and other
objectors and, within limits, to document their attendance at settlement approval hearings. Except in E.D. Pa., however, we were generally unable to obtain transcripts of the settlement approval hearings, so our report of attendance in the other three districts is based on clerical entries that seem likely to undercount the participation of class members and objectors.205 With
this caveat, court files indicate that nonrepresentative parties were recorded as attending the
settlement hearing infrequently, with 14% in E.D. Pa. being the high mark and the other three
districts showing 7% to 11% rates of participation (see Figure 53). Attendance of representative
parties was also mixed. Again, E.D. Pa. had the highest rate, 46%, and the other districts varied
from 11% to 28% (see Figure 53; see also supra § 4 (c)).
Participation by filing written objections to the settlement was far more frequent than participation by appearing at the settlement hearing. Generally, objectors filed their objections in
writing before the hearing. Typically, the parties addressed the objections in the final motion
for approval of the settlement. Overall, about half of the settlements that were the subject of a
hearing generated at least one objection. The percentage of cases in which there was no objection ranged from 42% to 64% in the four districts (see Table 38).
The most frequent type of objection was to the amount of attorneys’ fees as being dispro.
portionate to the amount of the settlement; in 14% to 22% of the casesorp four 7
l C in the201 districts, oba
jectors raised this point (see Table 38). The next mosteutic objection related to the inc frequent er ,
rafor their losses. 12 in line were object
sufficiency of the award to compensate class members
. Nu ept mb Next
ert v subgroups. Aewide variety of objections were
tions that the settlement disfavored certain on S
ambMany of
grouped in a miscellaneousn L
i category. chivedthe miscellaneous objections raised serious concited 423 ar
cerns that were difficult to categorize.206

-56

15
No.

203. 2 Newberg & Conte, supra note 55, § 11.55, at 11-132 to 11-133.
204. Id. § 11.56, at 11-137.
205. But, in a recent article, the author asserted that an empirical study of terminated class actions in N.D. Cal.
from 1985 to 1993 showed that “class representatives did not participate in 100% of the cases.” Downs, supra note 50,
at 691. Our study, however, found that one or more class representatives attended nine of 32 settlement approval
hearings in N.D. Cal. and that the nine hearings were held between June 18, 1992, and December 17, 1993. The difference appears to be that we counted as an appearance any notation on the clerk’s minute entry that one or more
class representatives were present. Professor Downs did not count such entries as indicating presence because, in his
experience, clerks place in the minute entry what the lawyers say in court. Thus, the minute entries may simply represent instances where a lawyer for the class announced an appearance “on behalf of [a class representative]” who
was not present. Telephone conversation with Professor Downs (Jan. 2, 1996). Whatever view one takes of the N.D.
Cal. data, the data derived from transcripts in E.D. Pa. appear to be the most reliable data available.
206. For example, in In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d
Cir. 1995), cert. denied, No. 94-2137, 1995 U.S. LEXIS 5538 (Oct. 2, 1995), an extensive number of complaints were
filed and heard at the settlement hearing, including complaints that the settlement did not properly address safety
concerns. In two ERISA cases, pensioners raised questions about the effect of the settlement on their retirement
benefits. In one case, shareholders raised a claim that the recovery was excessive and would diminish the value of
their stock. Schlansky v. EAC Indus., No. 90-854 (N.D. Ill. filed Feb. 13, 1990). At least three miscellaneous objections raised questions about the scope of the release and at least four raised questions about the substantive terms of
the proposed settlement.

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How did the courts respond to the objections? Approximately 90% or more of the proposed
settlements were approved without changes in each of the four districts. In a small percentage of
cases, the court approved the settlement conditioned on the inclusion of specified changes.
Overall in the four districts, judges made changes in nine settlements before approving them. In
seven of these cases, objections had been raised and the changes may have been responsive to
those objections, but our data do not permit us to examine that relationship systematically.207
Similar results were obtained for specific objection to the amount of fees requested. Overall,
in twenty-one cases, objections to the amount of attorneys’ fees were filed. In nineteen of those
twenty-one cases the court awarded 100% of the request and in the other two the court awarded
less than the full fee request.208 (For a comprehensive discussion of the courts’ treatment of attorneys’ fees in the study cases, see infra § 16.)
Our study was not designed to trace the responses to each objection, but our general impression is that the parties summarized and discussed most objections in a motion for settlement
approval. The parties generally filed such a motion after the deadline for filing objections had
passed, shortly before the settlement approval hearing. Many of the settlement approval orders,
which were typically prepared by the parties for the judge’s signature, specifically addressed
objections.
Discussion. Objections represent an outside source of information about the substance of the
settlement and its impact on class members. The settling parties at this stage have little or no
.
incentive to present negative information about the settlement, sol objections from class memCorp 017
ica
2
bers and others may be a crucial source of information about defects in the settlement.
ceut
r 12,
rasome levelbeparticipation by nonrepreut
In approximately half of the settlements, there was
v. Nchannels tem of
sentative class members and others. Therprocesson Sepparticipation into written filings that
be t
Lam
ed
the parties review, filter,d inpresent to hivcourt. The objections, in the form received, are gene and filingsrforthe court to read.
cit parties’23 a c the
erally appended to the
564
Appearances at hearings are infrequent and changes in the settlement as a result of objections
. 15o
are even less N
frequent. But, there are no data from other studies to suggest what one should expect.209
207. In one case the connection between the objection and the changes in the settlement was clear. Objectors
complained that certification of a mandatory class was inappropriate and that parties should be given an opportunity
to opt out. The court’s approval of the settlement included an opportunity to opt out. McKenna v. Sears Roebuck,
No. 92-2227 (N.D. Cal. filed June 12, 1992). In another instance, the change consisted of lowering the percentage of
attorneys’ fees awarded and changing the formula for calculation of fees and expenses, but it was unclear whether the
change was responsive to a specific objection. Nathanson, IRA v. Tenera, No. 91-3454 (N.D. Cal. filed Oct. 2, 1991).
In another case, the court’s action in initially rejecting a settlement appeared to arise sua sponte. The court determined that a settlement of the derivative action had not been properly approved by disinterested members of the
corporate board and, for that reason, the court disapproved that settlement. Because settlement of the class action
was contingent on court approval of the derivative settlement, the class action settlement was disapproved until the
parties reached a proper settlement of the derivative action. In re Oracle Sec., No. 90-931 (N.D. Cal. filed March 29,
1990).
208. In E.D. Pa., 58% of the fee request was awarded in one case and 100% in the other five cases in which objections to fees were filed. In N.D. Ill., 94% was awarded in one case and 100% in the other four cases with objections.
In the other two districts 100% of the requested fees were awarded in all cases with objections to fees.
209. The Georgetown study did not examine participation or objections. Georgetown Empirical Study, supra
note 88. See also supra note 205.

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(c) Nonrepresentative class member participation by filing appeals
Data. As noted in supra section 13(a)(2), three prospective intervenors filed appeals from the
denial of their application to intervene. Prospective intervenors, together with one or more
named plaintiffs, also filed appeals addressing other issues in three cases, one involving the denial of an injunction, another the denial of class certification, and the third, the granting of
summary judgment for the defendant. In all three instances the trial court’s judgment was affirmed.
In addition, objecting class members filed appeals in two major consumer class actions. One
of those appeals, the General Motors Pick-Up Truck Litigation, resulted in a decision that vacated the order certifying a settlement class and remanded the case to the district court for further proceedings. In the other case, a class member filed an appeal from the district court’s approval of a $3 million attorney fee award in a case in which the class remedy was to provide $50
coupons toward the purchase of specified automotive equipment to replace prior purchases of
similar equipment.210 That appeal is pending.

(14) Settlement
(a) Did certification coerce settlement of frivolous or nearly frivolous claims?
Background. Earlier (see supra § 5(c)(i)), we observed that one indicator of a “strike suit” is the
power of the filing of a case to coerce a settlement without regardCorp.
to the case’s merit or lack
211 In this section we carry that discussion further bycal
i examining ,the017
thereof.
2 2 relationship beceut
tween class certification and the settlement of Nutra central er 1 is: Does the act of
cases. The mb question
e
v.
e frivolous claims? We cannot address
certifying a class coerce settlement of frivolous or nearly pt
bert
on S
am ved have no way of knowing, from the written court
this question directly with iourL because we
n data hi
cited 423 arcto settle and whether class certification played so domifile, what factors influenced the parties
nant a role as to be 15-56 coercive. Such questions might be addressed by other methods,
considered
No.
such as interviews.
One indirect, limited approach is to compare the outcomes of certified class actions (other
than those certified for settlement purposes only) to cases in which certification was denied or
not ruled on. If it is the class action device that coerces settlement, one would expect that certified cases would achieve settlements more frequently than cases that are not certified as class
actions. Viewed from another angle, certified class actions would be less likely to be disposed of
by noncoercive means, such as rulings on the merits via motions or trials. Such merits-related
dispositions are the traditional ways for litigants to avoid being coerced to settle. These two
tests overlap because cases that settle have by definition not been disposed of by rulings on the
merits.
(i) Outcomes of certified classes compared with outcomes for noncertified cases
Data. Table 39 compares the various motion, trial, and settlement outcomes of all certified and
noncertified class actions. Cases certified for settlement purposes only were not included in the
above analysis because generally the settlement in those cases was reached before the court

210. McKenna v. Sears Roebuck Co., No. 92-2227 (N.D. Cal. filed June 12, 1992).
211. See discussion supra § 5(c).

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ruled on certification. Thus, the settlement could not be said to be a product of a certification
ruling.
Across the four districts, a substantial majority of certified class actions were terminated by
class-wide settlements. In the four districts, the percentage of certified class actions terminated
by a class settlement ranged from 62% to 100%, while settlement rates (including stipulated
dismissals)212 for cases not certified ranged from 20% to 30% (see Table 40). Certified class actions were more than two times more likely to settle than cases that contained class allegations
but were never certified (see Table 40).
The converse proposition—that certified class actions are less likely to be terminated by traditional rulings on motions or trials—is also true. For the most part, this finding follows directly
from having a high percentage of settlements that terminated the litigation. Combining the motion and trial categories in Table 39 yields a range of nonsettlement dispositions from 13% to
37% for certified class actions compared to a range of 45% to 62% for cases filed as class actions
but never certified as such (see Table 41). In each of the four districts, noncertified cases were at
least twice as likely as certified class actions to be disposed of by motion or trial. These data
confirm empirical data from an earlier study of class action activity in N.D. Cal. 213
What do those data tell us about whether settlement was coerced? Without examining the
options available to the parties, whether those options were pursued successfully or unsuccessfully, one should not rush to conclude that the cases settled simply because they were cerp.
tified. For example, if a case settled after a ruling on summary judgmentror in the 7 of a trial
l Co 201 face
a
date, that settlement might be seen as primarily the producttof the ruling ,or the setting of the
eu ic
racon theseber 12
trial date. In the following section we will look.at thetdata tem alternatives.
Nu

rt v

ep

b dismiss, on S
(ii) Frequency of rulings on motions to e
Lam class ed motions for summary judgment, trial dates
incertified chivactions
scheduled, and trialstheld in
ci edof 423 ar
Data. The vast majority56cases that were certified as class actions were also the subject of rulings on motions to 15
No. dismiss, motions for summary judgment, or the setting of a trial date. Approximately a third of those cases in one district, 50% in two districts, and more than 80% in the
fourth were the subject of rulings on at least one motion to dismiss (see Figure 54). The percentage of cases with rulings on motions for summary judgment ranged from 30% to 67%, with
the middle two districts showing 43% and 44% (see Figure 55). Finally, trial dates were set in
percentages ranging from 17% to 56% in the four districts (see Figure 56).
Overall, from 72% to 94% of the cases certified as class actions received either a ruling on a
motion to dismiss, a ruling on a motion for summary judgment, or the setting of a trial date (see
Figure 57). Looked at from the other side, at most 6% to 28% of the certified class actions in the
four districts could possibly have settled without a ruling on the merits or the setting of a trial
date.
212. Stipulated dismissals were not included as class settlements because a stipulation of dismissal does not satisfy
the Rule 23(e) requirement of obtaining court approval for a class settlement. On the other hand, a stipulation of dismissal is an acceptable way of indicating a nonclass settlement.
213. Bryant G. Garth, Studying Civil Litigation Through the Class Action, 62 Ind. L.J. 497, 501 (1987). Garth and
his colleagues found a 78% settlement rate for certified class actions compared to a 15% settlement rate for cases filed
as class actions but not certified. Seventy percent of the uncertified cases were disposed of by motion to dismiss or by
summary judgment.

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Of the three factors discussed, the effect of setting of a trial date seems somewhat ambiguous
and difficult to interpret because we have no way of measuring whether the date was firm or
realistic enough to have an impact on settlement. Local practices may have clerks enter the settings in a semiautomatic fashion. But even eliminating the setting of a trial date as a factor does
not change the data very much. More than two-thirds of the certified class actions in the four
districts had rulings on either a motion to dismiss, a motion for summary judgment, or both (see
Figure 58).
Discussion. The data indicate that certified class actions receive considerable attention from
judges or their staff in the form of ruling on motions and setting trial dates. Data from the time
study214 reinforce this finding. Judges spent about eleven times more time on class actions than
on the average civil case in the time study (see supra § 2(d)). Judicial rulings and active case
management, including the setting of trial dates and holding pretrial conferences (see Table 19),
cannot be said to eliminate the possibility of coerced settlements, but their prevalence in this
study of class actions greatly diminishes the likelihood that the certification decision itself, as
opposed to the merits of the underlying claims, coerced settlements with any frequency. The
data show that a district judge examined the merits of the great majority of cases and that the
parties pursued some, if not all, of the litigation alternatives available to them. One might reasonably conclude that rulings on motions and the case management practices limited the ability
of a party to coerce a settlement without regard to the merits of the case.
p.
Another perspective on the relationship between certification and settlement is7 view cerl Cor 201 to
a
tification as a “settlement event,” that is, an event that wouldtic
2,
aceu “affect substantially the potential
rvalue of theber 1and “let lawyers gauge
ut
value of a settlement,” “clarify uncertainty about the
tem
v. Nthe certification case,” can be expected to
this
decision
the approach of the judge.”215 Frombertangle,on Sep
m
have a direct impact on settlement, just ived
in La rch as a ruling on summary judgment or an arbitration
ted
award might have.ci impact, 3 a
The
42 though, seems to arise from implicit judicial recognition of the
5-56 the multiplication of those claims by the size of the class. In other
plausibility of the.claims and
1
No
words, the impetus to discuss settlement may flow from an assessment of the total liability the
litigation might impose.
(iii) Timing of settlements in relation to class certification
Background. Another indicator of the relationship between certification and settlement is the
timing of the two events. If settlement occurs before or simultaneously with certification or long
after certification, the possibility of any connection between the two seems remote. Unless settlement follows reasonably promptly after certification, the settlement would not seem to be
directly related to the certification. While simultaneous settlement and certification might be
seen as anticipating the probability of certification if no settlement was reached, there is no judicial ruling that can be said to coerce settlement. (For discussion of the effect of the filing of the
complaint on settlement, see supra § 5(c).)
Data. The time from certification to settlement varied widely (see Table 42). The median
times in the four districts ranged from 9.2 to 18.9 months. The majority of the cases in one district settled before certification and in the other three districts, 15%–37% of the cases settled be214. Willging et al., supra note 26.
215. Garth, supra note 213, at 504.

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fore certification. In three districts, at least a quarter of the certified class actions settled within
two months after certification. A large number of these cases were settlement classes which were
certified simultaneously with the preliminary approval of a proposed settlement. At the other
end of the scale, at least a quarter of the cases in all four districts took more than a year after certification to settle. In three districts, this quarter of the cases took approximately two to three
and one-half years or more.
Discussion. The data on timing of settlements did not support any inference of a relationship
between certification and settlement. Many cases settled before the court ruled on certification
and a sizable number, a majority in three of the districts, settled more than a year after certification.

(b) Notice
Background. When certification is first sought at the settlement stage, the question raised is:
How effective is the attempt to ensure compliance with notice and certification requirements?
As noted in section 10(a), supra, Rule 23(e) requires notice of settlement or compromise in all
class actions, regardless of the type. Thus, all cases certified for settlement purposes would be
expected to have a notice of the certification combined with a notice of the settlement and
communicated to the class. 216 In section 10(a), however, we found that six settled (b)(2) classes
received no notice of settlement. Our analysis in this section overlaps with that analysis. We also
found in section 10(a) that five certified (b)(3) classes received no notice p.certification before
orof 17
being disposed of on the merits (four) or by stipulation (one).icalalso found a tendency to deWe C
, 20
ut
lay notice after certification until a settlement was reached, perhaps ershift the costs of notifying
race mb to 12
t
. Nu
the class to the defendant or a settlement tfund or perhaps te other reasons, such as to gather
er v on Sepfor
b
information about the class.n Lam
i
ived
Settlement classested difficult forrthe court to evaluate because of the lack of an adversarial
ci are 423 a ch
6
proceeding on class certification. 217 Complicated issues, such as conflicts between class counsel
15-5
and counsel foro.
individual plaintiffs or the need to protect future claimants, may challenge the
N
court.218 The approval process generally involves two steps: a preliminary evaluation of fairness
and a later review, after notice, at a fairness hearing.219
Data. In two districts, notice of settlement was disseminated to the class in all class actions
certified for settlement purposes. In the other two districts 13 of 16 ( 81%) and 12 of 15 (80%)
settlement classes included notice to the class (see Figure 59). Overall six cases in the latter two
districts did not include notice of the approval of a settlement class. In all of those cases, the
court explicitly approved the proposed class settlement without requiring any changes. In none
of the six cases did the file indicate that the classes were (b)(3) classes or that class damages were
included in the settlement. All involved some form of injunctive relief. Nevertheless, Rule 23(e)
requires notice to the class prior to the settlement of these cases so that class members have an
opportunity to review the proposed settlement and participate in the review process.

216. When a settlement is presented to a court that has not ruled on certification, generally the court’s order preliminarily approving the settlement includes a ruling on class certification.
217. MCL 3d, supra note 34, § 30.45, at 243–44.
218. Id. at 244.
219. Id. § 30.41, at 236–38.

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In those same settlement class actions, the court issued a preliminary approval of the settlement in more than 80% of the cases in three districts and in 50% of the cases in the remaining
district (see Figure 60). Overall there were twelve settlement classes, eight in one district, that
did not appear to include a preliminary approval ruling (see Figure 60). Three of these cases
involved class damages and all three of those cases had a subsequent fairness hearing. Seven
settlement classes had neither evidence of preliminary approval nor of a later fairness hearing
(see Figures 60 & 61). None of those seven cases was certified as a (b)(3) class and none involved money damages.
Discussion. A handful of cases in the study had no notice to the class of a class-wide settlement, generally for injunctive relief. Most of these same cases did not have either the preliminary approval of the judge or a hearing to examine the fairness of the settlement. All had the
final approval of a judge. Rule 23(e) and the guidance of the Manual for Complex Litigation,
Third make it clear that more is expected for a settlement class. Without notice to the class and
the reaction of class members to the settlement, the judge might not have sufficient information
to assess whether the settlement is fair and reasonably responsive to the interests of the class.
Nor does the fact that the cases involved injunctive relief and not money damages diminish
the need for notice and a hearing. Injunctive relief sometimes weighs more heavily in the lives of
class members than a modest share in a pecuniary settlement. For example, one of the settlements was on behalf of a class of persons who use wheelchairs, crutches, or similar aids and
.
wish to attend sporting events at a specific facility. The injunctive Corp
l relief provided that defen017
ica
dants would better accommodate such persons and stop denying floor 12, seating to the class.
ceut ber level 2
a
One assumes that some class members have . serious interestm the shaping and implementaa Nutr
in
t vwould assistptecourt in affirming or rejecting the
tion of this relief and that notice to theer
b class on Se the
am v
rather vague proposedd in L Notice ed a hearing might generate information about
i
e remedies.archall andbarriers faced by class members.
cit
whether the proposed remedy23
addressed the
564
Another example from this set of cases involved injunctive relief on behalf of a class of men. 15No
tally retarded individuals who were misplaced in facilities for the mentally ill. The settlement
provided for identifying all misplaced individuals and for funding 100 appropriate placements
in community settings across the state. Class members, their family members, attorneys, or
caseworkers would presumably be able to contribute information about whether the settlement
would be likely to meet their needs.
In proposing a settlement class, the parties usually intend to bar future claims. Ironically, the
lack of notice and a hearing leaves the settlement open to collateral attack by class members who
were not notified of its provisions.220
Why might a court and the parties bypass notice and a hearing in this context? While there
may be darker motives, a plausible reason may have been to save time and money, either for the
parties or the court, or both. Individual notice to a huge class might forestall a worthwhile settlement because neither side can afford the notice costs. And, of course, the economy could be
false if class members later successfully challenge the settlement.
That some courts and parties evaded the clear mandate of Rule 23(e) in this handful of cases
raises the question of whether bypassing notice and a hearing might in some cases be meeting a
need of class representatives or the court or both. If so, a rule allowing truncated notice (e.g., to
220. 2 Newberg & Conte, supra note 55, § 11.23, at 11-32.

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a sample of class members or by posting at offices or locations where the problems arose) on
explicit findings of financial hardship and high cost–benefit ratios might warrant the advisory
committee’s consideration.

(c) Attendance of nonrepresentative parties at settlement approval hearings
This topic was discussed in supra section 13(b).

(d) Provisions favoring named representatives
This topic was discussed in supra section 4(d).

(e) How often did magistrate judges or special masters evaluate settlements?
Background. The proposed revision to Rule 23(e) “clarifies that the strictures of [Federal Rule
of Civil Procedure] 53(b) do not preclude the court from appointing under that Rule a special
master to assist the court in evaluating a proposed dismissal or settlement.”221 Rule 53(b) provides that a special master is to be appointed only in jury trials involving complicated issues, in
nonjury trials upon a showing of some exceptional condition, or, if a magistrate judge is to be
appointed, upon the consent of the parties.222
The proposed revision to Rule 23(e) also authorizes referring settlement or dismissal proposals to magistrate judges for evaluation. Currently, in civil litigation generally, district judges
assign a variety of duties to magistrate judges.223 These judicial officers perform duties that
range from resolving discovery disputes to presiding, with the consentorp. parties, over civil
of the
trials.
ical C 2, 2017
eut clarify
The principal reason for these proposed ruleutrac is to ber 1that the court has the
changes
N
m
authority to appoint an independent masterv. investigateptefairness of dismissal or settlement
ert to on Se the
bThe advisory committee cited some examples of when an
proposals in any certified classLam
in action. ived
independent evaluationd
cite might be arch when the named parties and their counsel have
23 necessary:
ceased to be adversaries564respect to the proposed dismissal or settlement, when the parties
with
15are required to o.
N disclose weaknesses in their own positions in the course of the evaluation of the
proposal, when the parties are required to provide information to assure that the proposal does
not directly or indirectly confer benefits upon class representatives or their counsel inconsistent
with fiduciary obligations owed to members of the class, or when other conflict-of-interest issues must be resolved. 224
Data on Special Masters. Of 126 proposed settlements in certified cases, a settlement was
assigned to a special master (other than a magistrate judge) in only 2 cases.225 One assignment
was for the purpose of facilitating settlement and the other was to review a consent decree that
incorporated a settlement. Neither assignment involved reporting to the judge on the merits of
221. Cooper, supra note 14, at 23.
222. Fed. R. Civ. P. 53(b). See also Wayne D. Brazil, Special Masters in Complex Cases: Extending the Judiciary or
Reshaping Adjudication?, 53 U. Chi. L. Rev. 394, 395–98 (1986) (discussing historical use and purpose of special
masters); Jonathan R. Macey & Geoffrey P. Miller, The Plaintiffs’ Attorney’s Role in Class Action and Derivative
Litigation: Economic Analysis and Recommendations for Reform, 58 U. Chi. L. Rev. 1, 57–58, 58 n.173 (1991)
(discussing courts’ justifications for appointing special masters).
223. 28 U.S.C. § 636(b)(3) (1976).
224. Cooper, supra note 14, at 22.
225. There were no referrals to review dismissal.

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settlement. Moreover, courts appointed masters in only 3 cases in the study as a whole, counting all appointments for whatever purpose.226
Data on Magistrate Judges. The study found that referrals to magistrate judges for settlement purposes227 were somewhat more frequent. By far, the greatest rate of magistrate referrals
occurred in N.D. Cal. (47% of certified cases with proposed settlement; 14 of 30 cases).228 In
the other three courts, the comparable rates were 5%, 23%, and 20%.229 Typically, the magistrate judge’s role was to facilitate settlement, not to report and recommend to the district judge
on the merits of a proposed settlement, although this occurred in some cases.
Discussion. The premise underlying the proposed rule change is that some judges are uncertain about their authority to appoint masters, especially for run-of-the-mill class action settlements or dismissals. 230 The rarity of appointment may indicate that district judges are reluctant to spark Rule 53(b) disputes within the litigation. The data may also indicate district judge
confidence and pleasure with the effectiveness of referrals to magistrate judges. The differences
in magistrate judge referral rates among the four districts may indicate variations in district referral practice generally, rather than propensity or reluctance to refer class action settlements.231
Another view is that the data reflect a general reluctance to assign matters to nonjudicial
officers, who might be perceived as having the potential to create more problems than they
solve. For example, the large numbers of parties in a class action make conflict of interest checks
difficult for the master, possibly exacerbating the problems of potential and actual conflicts of
.
interest that, it is argued, inherently exist in the class action setting.l Others argue, however, that
Corp 017
i a
these “inherent” conflicts are themselves one reason to appointc master,2, 2
ceut a be 1 one who can, to some
rasettlements orrother alleged abuses.
extent, serve as an additional guardian against.collusive
Nut ptem
ert v rates might suggest a need for the proposed rule
The study’s finding of generally low referral on Se
amb
change. Since class actionsn L involve itime-consuming and complex issues, clear authorizai often rch ved
ted
3a
tion for the use of ci
masters and magistrate judges could potentially conserve district judge time
5642 dismissal decisions.
and help expedite.settlement and
15-

No

226. In the third case, a master reviewed requests for attorneys’ fees.
227. There were no referrals to review dismissal.
228. Although the proposed rule change would not affect cases until after certification, it is interesting to note that
the rate of referral was lower for noncertified cases (37% or 7 of 19 cases). District judges eventually approved settlement in 20 of the 21 cases referred to magistrate judges.
229. The numbers of cases referred were small (2 of 43, 3 of 13, and 8 of 40, respectively). Rates of referral were
similar for noncertified cases.
230. See La Buy v. Howes Leather Co., 352 U.S. 249, 256 (1957) (construing narrowly exceptional circumstances
required to enlist services of special master).
231. For example, looking at other phases of class actions, the magistrate referral rate in N.D. Cal. was also significantly higher than the average rates in the other three districts with respect to the following phases of litigation:
discovery management, resolution of class issues, claims resolution, fund administration, and counsel-fee application
review; however, the district’s rate of referral for pretrial case management was comparatively low and its rate of referring class certification issues was about average compared to the other three districts.

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(15) Trials
(a) How often were trials held and with what results in what types of cases?
Background. The Judicial Conference Advisory Committee on Civil Rules asked us to determine how often class actions were actually tried on the merits and what results came from those
trials. To this end, we identified the frequency and outcomes of trials by nature-of-suit code and
by other case characteristics, such as certification status and Rule 23(b) subdivision.
Data overview. A trial began in only eighteen cases in the four districts combined. The trial
rate in class actions in each of the four districts was not notably different from the 3% to 6% trial
rate for nonprisoner nonclass civil actions (see Table 16). A little less than half of the eighteen
trial cases were certified as class actions.232 Given the small number of trials, we did not attempt
to stratify trial outcome data by district. 233 Instead, we aggregated data for the four districts (see
Tables 43 and 44); however, inferences about the universe of trials in class actions nation-wide
cannot be made from these aggregated results.
Plaintiff classes and individual plaintiffs did not fare well at trial. Except for one default
judgment that led to a class settlement,234 no trial resulted in a final judgment for a plaintiff
class. Of the three trials that found for individual plaintiffs, one judgment was vacated and remanded for dismissal, one judgment was vacated with a resulting $1 damage award for the
plaintiff on remand, and one defendant’s appeal was dismissed. Five of the eighteen trials led to
settlement during or after trial, including the default judgment caseCorp. above that was
mentioned
017
ical for the, class, and two nonsettled during an appeal, two certified cases after partial eut
judgments
c
12 2
certified cases.
utra
ber
t v. N Septem
Some have theorized that trials are more common in (b)(2) actions, because they often purber
n
Lam i common
sue still developing legal theories, and lessved o in (b)(3) actions where large sums are often
ch
ed in 3 berthe case in the small number of trials we studied. Four of
c not 42
at stake.235 This did it appear to a
the eighteen trials were 56
15- in cases filed as (b)(2) class actions without any (b)(3) claims. Three
No.
were certified; one was not. An additional three noncertified civil rights actions did not specify a
23(b) type, but they also could have been of the pure (b)(2) variety. Thus, as many as seven of
the eighteen trials involved (b)(2) issues with no (b)(3) issues. The same number of other trials
involved classes seeking large dollar recoveries: five (b)(3) securities classes 236 and two
(b)(2)/(b)(3) Title VII classes.237

232. The percentage of certified class actions in which a trial began ranged from 0% to 14% in the four districts
(see Figure 56).
233. We did, however, gather data on the percentage of class action cases in which a trial date was entered on the
docket (see Figure 62), the percentage of certified cases in which a trial date was entered on the docket (see Figure
56), the timing of the first entry of the trial date (see Figures 63 and 64), and the timing of the scheduled trial date (see
Figures 65 and 66). The four study districts entered a trial date within two years of the filing of the complaint in over
40% of the cases for which trial dates were entered (see Figure 64). One district set a trial date in all of its cases within
the first two years of the case. See supra § 14(a)(ii) for a discussion of the effect of setting a trial date on settlement.
234. In one certified case, the plaintiff class won a default judgment after the defendant failed to appear on the first
day of the jury trial.
235. Cooper, supra note 6, at 33.
236. These five were jury trials, generally involving fraud issues, with all but one of the classes certified.
237. Both were combination jury/bench trial cases, one certified and the other not.

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The remaining four trials concerned a certified class’s (b)(3) contract claim, an uncertified
b(3) ERISA claim, and (b)(2)/(b)(3) tort claims in cases in which the case file did not indicate
that large dollars were at stake. No prisoner cases went to trial. More specific information on the
eighteen trials is presented below.
Data on Jury Trials. Ten of the eighteen trials were before a jury (see Table 43). All but one
resulted in decisions for the defendant or in settlement by the parties. The verdicts generally
survived appeals, except for one reversal in part of a directed verdict.
Among the eighteen trials, cases involving (b)(3) claims had a higher rate of trial by jury than
cases without (b)(3) claims. Seventy percent of the trial cases with (b)(3) claims went to jury
trial, compared to 25% of the cases filed under (b)(2) alone. 238
(i) Certified cases with jury trials
Six of the ten jury trials involved class issues in certified cases. The class was not successful in
four of these cases, including three securities cases and one contracts case. These four verdicts
for defendants survived appeal. The fifth of the six jury trials in certified cases was a jury/bench
combination in a protracted Title VII case that eventually settled, but only after nonfinal judgments for one large subclass on the issue of defendant’s liability and for the defendant on its liability to a second subclass. In the sixth certified case, the plaintiff class won a default judgment;
the court of appeals dismissed the appeal of that ruling after the parties settled.

p.
(ii) Noncertified cases with jury trials
l Cor 2017
Four of the ten jury trials were in cases not certified as class actions. In one securities case, the
,
utica
race mber 12 lost at trial; the reparties settled during the trial. In two civil rights ut individual plaintiffs
cases,
te
v. N Se case the court of appeals reversed in
sulting appeal in one case was dismissedrand in the otherp
be t
on
am vdirected verdict. In the fourth noncertified case, a
part and affirmed in part in L court’s ed
the trial
i
cited 423 arch
jury/bench trial combination resulted in injunctive relief and damages for the individual plaintiff
- 6
on Title VII claims and5
o. 15 partial summary judgment for the defendant on an ADEA claim; reN
sulting cross-appeals were dismissed.
Data on Bench Trials. Eight of the eighteen were bench trials (see Table 44). Defendants
were found not liable in four of these cases. Three were not certified and involved individual
claims concerning civil rights, personal injury, and ERISA issues, with no resulting appeals in
two cases and an affirmance in the third. In the one certified case, the court found defendants
not liable for civil rights violations, both with respect to the class and with respect to individual
plaintiffs. No one appealed.
Courts found for individual plaintiffs in two bench trials 239 but the court of appeals vacated
those judgments. Finally, two cases settled during, or immediately after, the bench trial: one a
certified civil rights action and the other a noncertified contracts case.

238. Seven out of the ten trials in cases with (b)(3) claims (alone or in combination with (b)(1) or (b)(2) claims)
were jury trials, compared to one jury trial out of four trials in cases with (b)(2) claims and no (b)(3) claims.
239. In one case involving personal property damage claims, the trial court awarded $75,000 to the individual
plaintiffs with no award to the certified class. In the other, a civil rights case, no class was certified.

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(b) How did class action trial rates compare with trial rates for all other civil cases
within the district?
As discussed supra, in section 2(b), the rate of trial (jury and bench) for class actions and other
civil cases was in the 3% to 6% range in the four districts (see Table 16).

(16) Fee/Recovery Rates
Overview. An overarching question concerning attorneys’ fees is whether, in addition to conferring benefits on attorneys, class action outcomes confer substantial benefits on class members.
The major questions posed in this section are: What were the ratios of attorneys’ fees to recoveries? What methods other than lodestar have courts used to regulate fees? To what extent have
methods of fee regulation taken into account the benefit to the class?

(a) What were the ratios of attorneys’ fees to recoveries?
Background. Professor Cooper has referred to the “cynical belief” that “many class actions serve
only to confer benefits on class counsel.”240 To address this issue, we computed a “fee-recovery
rate” (attorneys’ fee awards241 divided by gross monetary settlement 242) for certified class actions where the court approved a settlement.243 This rate is meaningful only in “distribution
cases,” cases where some form of monetary benefit was available for distribution to class members after payment of attorneys’ fees and expenses, notice costs, and other administrative expenses. Interestingly, in two districts 82% of certified cases that settledorp. distribution cases,
C were 017
but the comparable figure in the other two courts was 53%.244 tical
2, 2
eu
Data and Discussion. There were no fee awardstrac few fee requests by, counsel other
u to, andtember 1
v N S distributions to the class exceeded atthan plaintiffs’ counsel. 245 In most cases, tnet.monetaryep
ber

n
Lam
ed o
ed in 3 archiv
cit
42
240. Cooper, supra note-5at 34. Some argue that class counsel at times receive large fees from settlements that
5 6, 6
. 1or only speculative benefits to the class. See MCL 3d, supra note 34, § 30.42, at 239–40. See
provide nominal benefits
No

also Senate Staff Report, supra note 8, at 73–74.
241. Fee awards exclude sanctions and out-of-pocket expenses.
242. Gross monetary settlement includes any cash payments or quantifiable benefits to class members, separate
payments to class representatives, donations to charities or public interest groups, attorneys’ fees and expenses
awarded by the court, and administrative costs of the settlement.
243. No case that went to trial and did not settle resulted in a final judgment or verdict in favor of a class. See supra § 15(a).
244. In the balance of certified and settled cases, the class received some form of equitable relief, coupons, price
reductions, or other benefits that the court could not quantify, that the parties did not quantify, or that led to unresolved disputes concerning value in the litigation or on appeal. We refer to these as “no distribution cases.” In the
General Motors Pick-Up Truck Litigation, the principal settlement (vacated on appeal) consisted of distribution of
$1,000 coupon certificates to an estimated 5–6 million class members. Objecting class members placed economic
value on the coupon distribution that differed significantly from defendant’s estimates. In re General Motors Corp.
Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 807 (3d Cir.), cert. denied, 116 S. Ct. 88 (1995). The fee
award, vacated on appeal, was $9.5 million. Id. at 822.
Sometimes litigants settled on liability issues but left each class member’s claim to be determined individually,
such that the total amount to be distributed to the class was not known at the time of the fee award. For example,
under the claims resolution procedure in one settled case, class members who filed valid claims could receive 100% of
the medical insurance benefits due to them for certain medical services. The settlement did not place a dollar limit on
claim recoveries. Fee awards totaled $3.7 million.
245. Defendants’ counsel unsuccessfully requested fees in one case each in three districts; case files did not con-

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torneys’ fees by substantial margins. The fee-recovery rate infrequently exceeded the traditional
33.3% contingency fee rate. Median rates ranged from 27% to 30%. Most fee awards in the study
were between 20% and 40% of the gross monetary settlement (see Figures 67 and 68).246
Some distribution cases also included other class relief that the court did not quantify.247
This occurred about a third of the time in two districts and about 17% and 25% of the time in
the other two courts. To the extent that monetary value can be associated with that relief, the
data presented in this subsection understate the value of gross settlement and thus possibly
overstate fee-recovery rates.
The fee-recovery rate calculations discussed in this subsection do not include cases with no
net monetary distribution to class members (no distribution cases), because those settlements
contained only equitable or other nonquantifiable relief. Fees and costs comprised all or a large
percentage of the settlement funds in those cases.248

(b) How were fees calculated?
Background. In most study cases—as in most class actions generally—the court awarded attorneys’ fees under the century-old common fund doctrine. 249 Traditionally, in determining fees in
common fund cases, courts included the size of the fund as a principal factor and frequently

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tain the amounts sought. Parties other than plaintiffs or defendants requested fees in two cases in only one district.
The first was a $300,000 fee application by nonlead counsel relating to legal services performed before the court
appointed lead counsel pursuant to a competitive bidding process. Although the court declined to award the requested fees from the settlement fund, the order stated that nonlead counsel might be entitled to fees on the basis of
quantum meruit. In the other case, counsel for an objecting class member unsuccessfully requested $131,000 in fees.
246. In one district, N.D. Cal., the median fee award to class counsel was $1.5 million, with an average fee award
of approximately $2.5 million. In the other three districts, the median and average fee awards were smaller—with
medians ranging between $0.6 million and approximately $ 1 million and averages from just under $0.75 million to
approximately $1.4 million (see Figure 69). However, the N.D. Cal. average fee award was within the range of the
other three districts if one excludes the district’s largest fee award ($13.9 million).
N.D. Cal. also had the highest median ($5.1 million) and average ($10 million) gross monetary settlement. In
comparison, the other three districts’ median settlement amounts were between just under $2 million and approximately $ 3 million, with average amounts between $3.2 and $4.7 million (see Figure 70). For N.D. Cal., even if the
largest settlement ($ 73.6 million) is excluded, the district still had a comparatively large mean settlement amount
($7.2 million). However, some perspective is offered by looking at the district’s average gross monetary settlement per
notice sent, which was only slightly above the comparable average for the other three districts combined.
247. For example, in one case, class counsel valued the settlement’s “noncash” benefits at $8.3 million in addition
to the $9.9 million monetary distribution. In another case, the defendant supplemented the $ 487,000 monetary distribution by agreeing to implement practices designed to increase the representation of women and AfricanAmericans in its workforce.
248. See supra note 244. Typically, the only payments defendants made in these cases were to attorneys, class
representatives, and noticing companies. We will refer to these payments collectively as “settlement costs.” Fee
awards as a percentage of these settlement costs were 96%, 91%, 88%, and 80% on the average for the four districts
(see Table 45). The median percentage of gross settlement amounts attributable to costs of administering the settlement (primarily notice) was 2% across the four districts in the 29 cases for which data were available. In these cases,
the median amount of such expenses was $100,000.
249. The principle governing the doctrine is that “persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense.” Boeing Co. v. Van Gemert, 444 U.S. 472,
478–79 (1980). See also Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392 (1970). See generally Alan Hirsch & Diane
Sheehey, Awarding Attorneys’ Fees and Managing Fee Litigation 5-48 & 75-88 (Federal Judicial Center 1994).

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based awards on what the court considered to be a reasonable percentage of the fund.250 In the
early 1970s, courts began moving away from this approach toward the lodestar method, under
which the fee award is calculated by multiplying the hours reasonably expended times the reasonable hourly rates.251 In the 1980s, however, the pendulum swung again and courts began to
reconsider the lodestar method. 252
In federal courts today, a threshold question in determining fees in common fund cases is
“whether the jurisdiction requires use of the lodestar method or whether it requires, permits, or
has yet to rule upon the propriety of a percentage fee award.”253 In recent years, the trend has
been toward the percentage of recovery method.254 For example, the Court of Appeals for the
Eleventh Circuit has required the percentage method in common fund class actions.255 The
Third,256 Seventh, 257 and Ninth258 Circuits authorize either the lodestar or the percentage
method.
250. A basic premise of the percentage of recovery method is that a common fund is “itself the measure of success
. . . [and] represents the benchmark from which a reasonable fee will be awarded.” 3 Newberg & Conte, supra note
55, § 14.03, at 14-4. See also Camden I Condominium Ass’n v. Dunkle, 946 F.2d 768, 774 (11th Cir. 1991).
251. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d Cir.
1973). The Supreme Court never formally adopted the lodestar method in a common fund case. MCL 3d, supra note
34, § 24.121, at 189.
252. The latest swing away from lodestar received momentum from a footnote in a 1984 Supreme Court decision
that distinguished between calculation of fees under fee-shifting statutes (where “a reasonable fee reflects the amount
of attorney time reasonably expended”) and under the common fund doctrine (“where a reasonable fee is based on a
percentage of the fund bestowed on the class”). Blum v. Stenson, 465 U.S. 886, 900 n.16 (1984).
Additional momentum came in 1985 when a Third Circuit task force, formed to examine court-awarded attorneys’ fees, recommended the percentage of recovery method for common fund cases. Court Awarded Attorneys’
Fees, Report of the Third Circuit Task Force, reprinted in 108 F.R.D. 237, 255–56 (1985) [hereinafter Task Force
Report]. The Task Force Report discussed criticism by courts, commentators, and members of the bar. Criticism
included that lodestar has proven to be difficult to apply, time-consuming to administer, inconsistent in result, and
capable of manipulation to reach a predetermined result. Id. at 246–53.
253. MCL 3d, supra note 34, § 24.121, at 188 (footnotes omitted).
254. Id. at 189.
255. See Camden I Condominium Ass’n v. Dunkle, 946 F.2d 768, 774 (11th Cir. 1991) (“Henceforth in this circuit,
attorneys’ fees awarded from a common fund shall be based upon a reasonable percentage of the fund established for
the benefit of the class.”).
256. For example, in evaluating which method the district court could use, the Third Circuit stated recently that
“the court may select the lodestar method in some non-statutory fee cases where it can calculate the relevant parameters (hours expended and hourly rate) more easily than it can determine a suitable percentage to award.” In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 821 (3d Cir.), cert. denied, 116 S. Ct. 88
(1995).
257. See, e.g., In re Continental Ill. Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992) (fee award simulating “what the
market in fact pays not for the individual hours but for the ensemble of services rendered in a case of this character”
would be appropriate); Florin v. NationsBank of Georgia, 34 F.3d 560, 565 (7th Cir. 1994); Harmon v. Lymphomed,
945 F.2d 969, 975 (7th Cir. 1991). Although permitting either method, the Seventh Circuit has expressed a preference for the percentage method. In re Continental Illinois, 962 F.2d at 572–73.
258. Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990) (allowing use of either
percentage or lodestar calculation method in common fund case). See also In re Washington Pub. Power Supply Sys.
Sec. Litig., 19 F.3d 1291, 1295 (9th Cir. 1994). In Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th
Cir. 1989), the Ninth Circuit held that the percentage method is particularly suited for cases with multiple claims
where it would be difficult to identify what fees directly relate to the claims that created the fund.

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Proponents of the percentage method believe that it encourages early settlements and provides benefits to efficient counsel who under a lodestar approach might be penalized, rather
than rewarded, for their efficiency. 259 The percentage method also saves the court from the
cumbersome task of closely scrutinizing lodestar fee petitions to determine whether the hours
claimed were reasonably spent for the benefit of the class.260
At the same time, the percentage method has been criticized because, when strictly applied,
it can result in windfalls to class counsel in cases with very large settlements. Conversely, class
attorneys can be penalized if they take on challenging cases that yield small monetary recoveries.261 The method has also been criticized because it encourages early settlement and, thus,
might deny the class a potentially more generous recovery that further litigation could bring. 262
In a relatively small number of study cases, the court awarded fees pursuant to fee-shifting
statutes, such as the one governing civil rights claims, 263 rather than under the common fund
doctrine. Although over the past decade the percentage method has gained favor in common
fund cases, lodestar remains the accepted method in fee-shifting cases. 264 Given that the common fund doctrine applies in most class actions, we will concentrate our discussion on that
doctrine.
Data and Discussion. For all certified and settled cases in the study, lodestar was used more
frequently than the percentage method in only one district, E.D. Pa. (see Figure 71). Even in
that district, however, the percentage method was used nearly as much as lodestar. By contrast,
.
N.D. Cal. determined fees by percentage of recovery 6:1 over lodestarorp N.D. Ill. nearly 2:1
7
l C and

, 201
utica
race mber 12
ut
259. “Objections to the lodestar method were based.on the . . . premise that attorneys pad their hours and othert v N S decisions
erfees, and onkey epte pertaining to settlement are affected by
wise engage in unethical activities to enhance b
am theiralso 3 d that
counsel fees.” Downs, supra d in L 667. SeehiveNewberg & Conte, supra note 55, § 14.03, at 14-3 to 14-7 and
note 50, at
cite 4 786 arc
cases in nn. 17–20; Kirchoff v. Flynn,23 F.2d 320, 324 (7th Cir. 1986) (lodestar creates an incentive to run up hours
in relation to the stakes of the case); In re Oracle Sec. Litig., 131 F.R.D. 688, 693–97 (N.D. Cal. 1990) (same). For
-56
o. 15
additional problems identified with the lodestar method, see Monique Lapointe, Note, Attorneys’ Fees in Common
N

Fund Actions, 59 Fordham L. Rev. 843, 847–61 (1991).
260. See Skelton v. General Motors Corp., 860 F.2d 250, 253 (7th Cir. 1988), cert. denied, 493 U.S. 810 (1989).
261. Cooper, supra note 6, at 34.
262. Some critics maintain that settlement sometimes occurs when class counsel determines that the case has
reached its point of diminishing returns from the fees perspective, with class counsel viewing the additional attorney
time necessary to obtain a larger class recovery as not cost beneficial. See generally John C. Coffee, Jr., The Unfaithful
Champion: The Plaintiff as Monitor in Shareholder Litigation, Law & Contemp. Probs., Summer 1985, at 5, 41–44
[hereinafter Coffee, Unfaithful Champion].See also John C. Coffee, Jr., The “New Learning” on Securities Litigation, N.Y.L.J., Mar. 25, 1993, at 5 [hereinafter Coffee, New Learning]. For a discussion of conflicts of interest that
these situations create between class counsel and the class, see generally MCL 3d, supra note 34, § 30.16.
263. See, e.g., Civil Rights Act of 1964, 42 U.S.C. § 1988 (1988) (public accommodation and employment discrimination cases). Such statutes specifically authorize recovery of attorneys’ fees by the prevailing party. Whether
the award is mandatory or permissive depends on the terms of the particular statute and applicable case law. MCL
3d, supra note 34, § 24.11. The availability of statutory fees is driven by public policy, encouraging private enforcement of substantive rights under the law. Statutory fee cases often produce only nominal damages or declaratory
judgments—the kind of results that usually cannot be quantified. See generally Lapointe, supra note 259, at 865–67
(discussion of the differences between statutory fee and common fund cases).
264. Blanchard v. Bergeron, 489 U.S. 87, 94 (1989) (indicating that lodestar approach is the centerpiece of attorneys’ fee awards in a statutory fee case (citing Hensley v. Eckerhart, 461 U.S. 424 (1983))); Pennsylvania v. Delaware
Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986); Blum v. Stenson, 465 U.S. 886, 897 (1984). See
generally Hirsch & Sheehey, supra note 249, at 19-44.

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over lodestar. It appeared that the percentage method was the exclusive method in S.D. Fla.
(see Figure 71).
Interestingly, S.D. Fla., which did not use lodestar, had the lowest average rate (24%) while
E.D. Pa., which used lodestar the most, had the highest average fee-recovery rate (30%) (see
Figure 68). The differences were not as pronounced for median fee-recovery rates, which
ranged from 27% (S.D. Fla.) to 30% (N.D. Ill.) (see Figure 68).265 Factors other than selection
of fee-calculation method, of course, may have contributed to these results. Moreover, similar
differences in mean and median fee-recovery rates were found when we looked only at cases
using the percentage of recovery method (see Figure 72).
The four courts differed in their approaches to fee calculation depending on whether or not
the settlement created a fund for distribution to the class. In certified cases with net monetary
distributions to class members (distribution cases), the percentage method was far more prevalent than lodestar (see Figure 73). As one would expect, in settlements where the only benefits
to the certified class were those that could not be easily quantified (no distribution cases), courts
generally used lodestar or relied on consensual fee determinations (see Figure 74).
We will first discuss distribution cases. In the three districts where the appellate courts have
authorized either fee-calculation method, lodestar was used in less than 10% of the distribution
cases in two districts but in a third of the cases in E.D. Pa.266 (see Figure 73). In all four districts, judges determined fees using the percentage method in 45% or more of the distribution
.
cases. Percentage of recovery appeared to be the sole method usedl in S.D. Fla. 267 In N.D. Cal.,
Corp 017
judges used it in 78%268 of the distribution cases, comparedtic about 12, 269 in N.D. Ill. and
u to a 60% 2
race mber
ut
45%270 in E.D. Pa.271 (see Figure 73).
t v. N Septe
erthe dominant method in two districts (see Figure 74).
In no distribution cases, lodestar b
m was
on
In the other two districts, findings werehived
in La rc less informative because, in all but a few cases, the paredthe method used was not apparent from case files. In all four districts,
cit
ties consented on fees or 423 a
-56
nine cases were determined by lodestar and three by percentage of recovery (see Figure 74).272
o. 15 cases the court opted for lodestar when it could not quantify the value of
N
It appears that in many
class benefits, making a percentage of recovery calculation problematic.

265. Generally, the study could not measure the degree to which higher fee-recovery rates reflected high quality
work done, efforts to pursue challenging but deserving claims, or other factors. See discussion of fee adjustments and
multipliers infra § 16 (c).
266. The mean and median fee-recovery rates in E.D. Pa. distribution cases using lodestar were 30% and 28%,
respectively, compared to 28% and 27% using the percentage method.
267. In S.D. Fla., all percentage method cases involved securities claims.
268. In N.D. Cal., over 80% of the percentage method cases involved securities issues. None involved civil rights
claims.
269. In N.D. Ill., 60% were securities cases; 10% involved civil rights.
270. In E.D. Pa., nearly 90% were securities cases; no cases involved civil rights.
271. In one case each in two districts, the court applied both the lodestar and percentage of recovery methods (see
Figure 73). These cases are included in the percentages cited above. In addition, we could not determine the method
the court used in about 20% of the distribution cases where generally the parties stipulated to a fee award and the
court approved all or most of the stipulated amount.
272. In 50% or more of the cases, parties stipulated to fees or the fee method was otherwise unknown.

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Civil rights claims were generally more prevalent in no distribution cases.273 In part, this explains the higher lodestar usage in no distribution cases; lodestar is the appropriate method
when the court applies a fee-shifting statute.274
The Percentage Method. Median fee-recovery rates for distribution cases ranged from 27% to
30% when the percentage method was used, consistent with precedents in the four districts’
respective courts of appeals (see Figure 72). For example, recently the Third Circuit cited an
E.D. Pa. decision that noted that fee awards have ranged from 19% to 45% of the common
fund.275 In recent decisions, the Seventh 276 and Eleventh277 Circuits have discussed benchmarks or ranges of 20% to 30%. In addition, the Eleventh Circuit has instructed district courts
to apply the twelve Johnson factors 278 and other pertinent factors279 in determining the fee percentage. The Ninth Circuit has indicated that 25% should be the “benchmark”280 for such
awards, subject to adjustment upward or downward to account for any unusual circumstances
involved in a case.281 When federal district courts across the country use the percentage of recovery method for common fund cases, most select a percentage in a range from 25% to 30% of
the fund.282
Other Methods. To prevent a windfall to plaintiffs’ counsel in cases where the settlement fund
is unusually large, some courts have used the lodestar method283 or a sliding scale percentage

p.
l Cor 2017
,
utica
race mber 12
ut
v. N Septe
bert
n
Lam
ed o
ed in 3 archiv
cit
5642
. 15o

273. Civil rights cases represented 44%, 0%, 19%, and 40% of cases with no net monetary distribution to the class,
compared to 6%, 11%, 11%, and 9% of cases where the class received net monetary distributions.
274. See supra note 264.
275. In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 822 (3d Cir.), cert.
denied, 116 S. Ct. 88 (1995) (citing In re SmithKline Beckman Corp. Sec. Litig., 751 F. Supp. 525, 533 (E.D. Pa.
1990)).
276. See Florin v. NationsBank of Georgia, 60 F.3d 1245, 1248 (7th Cir. 1995) (quoting In re Unisys Corp. Retiree
Medical Benefits ERISA Litig., MDL No. 969, 1995 WL 130679, at *12 (E.D. Pa. Mar. 22, 1995) (“‘the benchmark in
common fund cases is 20%–30%’”).
277. Camden I Condominium Ass’n, Inc. v. Dunkle, 946 F.2d 768, 774–75 (11th Cir. 1991) (noting that percentage method is “better reasoned” for common fund cases and that the “majority of common fund fee awards fall between 20% and 30% of the fund”). In addition, the Eleventh Circuit stated, as a general rule, that 50% may be established as an upper limit. Id.
278. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974).
279. The other factors include “the time required to reach a settlement, whether there are any substantial objections by class members or other parties to the settlement terms or the fees requested by counsel, any non-monetary
benefits conferred upon the class by settlement, and the economics involved in prosecuting a class action.” Camden I,
946 F.2d at 775. See discussion of fee enhancements infra § 16(c).
280. “A benchmark is a single percentage figure used over and over again, regardless of the type of litigation or
the size of the recovery.” Lapointe, supra note 259, at 867, n.165.
281. See Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990) (25% of $850,000 in
damages: a percentage award “should be adjusted or replaced . . . when special circumstances indicate that the percentage recovery would be either too small or too large in light of the hours devoted to the case or other relevant factors”). See also Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989) (25% of a $4,736,000
recovery); In re Pacific Enterprises Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995) (an award of 33% was justified because of the complexity of the issues and the risks). See discussion of fee enhancements infra § 16 (c).
282. MCL 3d, supra note 34, § 24.121, at 189 (25%–30% range). See also Hirsch & Sheehey, supra note 249, at 68
(20%–30% range).
283. In re Washington Public Power Supply Sys. Litig., 19 F.3d 1291, 1297 (9th Cir. 1994) (“the 25% ‘benchmark’
is of little assistance” in a case where the settlement fund was large ($687 million)).

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method with the percentage to be awarded decreasing as the size of the fund increases (sliding
scale percentage method).284 Only one case in the study had a gross monetary settlement
amount greater than $50 million.285 The fee-recovery rate in that N.D. Cal. case was 19%, below
the Ninth Circuit benchmark of 25%.286
In another case, as part of a bidding process for lead class counsel, the court selected a fee
structure that included the sliding scale percentage method. In addition, the fee percentage under this structure would be discounted by 20% if the case settled within the first year of litigation (an early settlement discount). That is, in addition to the sliding scale based on settlement
amount, the class would also receive a discount on fees if the case settled early.287 Such discounts generally are intended to keep class counsel from settling prematurely, under the theory
that early settlement is likely to be advantageous to class counsel but detrimental to the class.288
Some ascribe to this theory in particular with respect to cases with large potential recoveries
where, as described above, 289 the sliding scale percentage method would decrease the fee percentage as the size of the fund increases. To offset any incentives for attorneys to settle early and
obtain fees at a higher percentage of a smaller settlement, the early settlement discount has been
introduced as a disincentive to premature settlement.

(c) How was benefit to the class taken into account?
Overview. In determining fee awards, the courts often included consideration of the extent to
which the class benefited from the settlement. We looked for the following as indicators: (1) use
p.
l Cor amount 7 on reof the percentage of recovery method, (2) any adjustments totthe lodestar 201 based
,
u ica
sults achieved, and (3) whether the court consideredtanyce objections.12
ra fee mber
u
e
v. N
Using this somewhat limited data-gathering technique, tit was apparent that the court took
bert of theon Sep cases in two districts and at least
am 80%ved distribution
class benefits into account in at least
in L other two
i
68% and 51% of theitime in the 3 arch districts (see Figure 73).290 In the balance of the disc ted

5642

15No.

284. See Task Force Report, supra note 252, at 256. See also Florin v. NationsBank of Georgia, 60 F.3d 1245 (7th
Cir. 1995) (“fee awards usually fall in the 13 percent–20 percent range for funds of $51–$75 million, and in the 6 percent–10 percent range for funds of $75–$200 million”). See also Coffee, New Learning, supra note 262, at 7 n. 13 and
accompanying text. But, it has been noted:
A percentage is a relative concept and one court’s award of twenty-five percent of a $19.3 million recovery does not mean that the percentage continues to be reasonable when applied to a $ 4.7 million
recovery. Thus, the notion that a percentage falling within a certain range is reasonable is inherently
misleading.
Lapointe, supra note 259, at 868 & n.170.
285. Stender v. Lucky Stores, Case No. 88-1467 (N.D. Cal. filed April 22, 1988).
286. The parties stipulated to attorneys’ fees and the court awarded the full amount of the fee request.
287. In re Oracle Sec. Litig., 132 F.R.D. 538, 541 (N.D. Cal. 1990). The selected fee structure was as follows:
Recovery
(in millions)
Up to $1
$1–$5
$5–$15
$15 or more

Time for Resolution
0–12 months 13 or more months
24%
30%
20%
25%
16%
20%
12%
15%

288. See supra note 262 and accompanying text.
289. See supra note 283.
290. This is in contrast to Professor Downs’ findings that “class attorneys received substantial awards . . . with

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tribution cases, case files did not provide sufficient information on fee-award rationale, often
because awards were based on consent of the parties or unadjusted lodestar calculations. Given
this, we generally could not determine whether or not the courts considered class benefits in
their fee decisions for these cases. To the extent that they did, the percentages cited above are
understated.
Background on fee adjustments and multipliers. One method courts have used to take class
benefits and other considerations into account has been to apply enhancements or reductions to
fee awards.291 In common fund cases, the trend had been that fee enhancements, where not
otherwise prohibited, should be reserved for the rare case in which the standard fee-calculation
method will not adequately compensate the professional.
One method used to enhance fees has been to apply a multiplier to the lodestar amount.292
In the past, the Seventh Circuit suggested limiting multipliers to a 200% increase in the lodestar.293 The majority of courts, however, had not imposed such limits.294
Data and discussion on fee adjustments and multipliers. In two cases, the lodestar was enhanced by a multiplier. In each case, the multiplier was approximately 2.5 times the lodestar
amount, resulting in a $765,000 (34%) fee award on a $2.2 million gross settlement in one case

p.
l Cor 2017
little or no judicial scrutiny.” Downs, supra note 50, app. at 710–11 (Chart D). ca
,
uti
291. When counsel request fee enhancements, arguments generally are that the case was especially difficult, that
race mber 12
ut that performance was otherwise superior. Counsel
N
the ultimate results produced exceptional benefits for v. class, or
rt the n issues presented, risk of nonpayment, and delay in
epte
also sometimes asks for adjustments toambthe novelty of the S
reflect e
o
ed
payment (loss of use of money). See Hirsch & Sheehey, supra note 249, at 69–70; 3 Newberg & Conte, supra note 55,
in L
t Georgia 3 a chiv
civ.ed 4HighwayrExpress, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974) (twelve factors to be
§ 14.03. See also Johnson
56 2
used in determining attorneys’ fees); Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied,
. 15- v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 562–66 (1986)
425 U.S. 951 (1976); Pennsylvania
No
(Delaware Valley I) (in the context of fee-shifting statutes, Johnson factors are subsumed within the lodestar amount
absent extraordinary circumstances).
292. In a decision that might have affected the use of multipliers in study cases, on June 24, 1992, the Supreme
Court barred risk multipliers (fee enhancers that account for counsel’s risk of nonpayment) in statutory fee-shifting
cases. City of Burlington v. Dague, 505 U.S. 557 ( 1992). The decision, however, did not address specifically whether
risk multipliers remain available in common fund cases. The effect of Dague on study cases (i.e., cases terminated in
the four districts between July 1, 1992, and June 30, 1994 ) is unclear; the relevant appellate courts did not begin to
interpret the decision in the class action context until March 1994.
The Seventh and Ninth Circuits concluded that Dague does not extend to common fund cases. See Florin v.
NationsBank of Georgia, 34 F.3d 560, 564–65 (7th Cir. 1994) (op. dated Sept. 8,1994 ); In re Washington Public
Power Supply System Sec. Litig., 19 F.3d 1291, 1300 (9th Cir. 1994) (holding that district court erred by refusing to
award risk multiplier to lodestar calculation) (op. dated Mar. 23, 1994). On the other hand, a recent Third Circuit
opinion, interrupting Dague, could be read to prohibit the use of multipliers for lodestar enhancement in common
fund class actions. In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 822 (3d
Cir.), cert. denied, 116 S. Ct. 88 (1995).
293. Skelton v. General Motors Corp., 860 F.2d 250, 258 (7th Cir. 1988), cert. denied, 493 U.S. 810 (1989). But
see In re Superior Beverage/Glass Container Consol. Pretrial, 133 F.R.D. 119, 132 (N.D. Ill. 1990) (awarding multipliers ranging from 1.5 to 2.5, depending on each attorney’s contribution). See also In re Continental Ill. Sec. Litig., 750
F. Supp. 868,896 (N.D. Ill. 1990) (no multiplier allowed), rev’d, 962 F.2d 566, 569 (7th Cir. 1992). These three
cases were not in the study.
294. See Richard B. Schmitt, Shareholders Suits Pay Attorneys Less, Wall St. J., Feb. 1, 1991, at B1, col. 4.

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and a $9.5 million fee award in the General Motors Pick-Up Truck settlement recently vacated
on appeal.295
The dearth of enhancers or other adjustments in study cases might be related to the frequent
use of the percentage method where the selected percentage itself can incorporate the factors
that previously resulted in fee adjustments. Similarly, there is a trend, and in fee-shifting cases a
mandate, to incorporate those factors into the lodestar components. Also, it is possible that,
prior to 1994 appellate decisions affecting two of the study courts, Dague had a chilling effect on
enhancements in common fund cases. 296

(d) What percentage of the fee amounts requested were awarded and how often were
objections and appeals filed concerning fees?
Data and Discussion. We looked at how frequently the court awarded fee amounts less than
counsel requested. Again, we found differences depending on the calculation method used. In
the three districts that used the lodestar, courts granted lodestar amounts less than requested in
22%, 17%, and 33% of the cases. By contrast, when these same three courts used the percentage
method, they reduced fee requests in 43%, 9%, and 16% of certified case settlements, respectively. The fourth district did not use lodestar and apparently did not reduce percentage
method requests. Regardless of the method, the vast majority of awards were 90% to 100% of
the request.
Class members, or other interested parties, did not object to fees veryroften; objections were
p.
7
l Cothree20eleven (27%) in
filed with respect to five out of thirty-four (15%) fee awards in tica
u one court, (25%)of 1
cetwenty-eight12, in the fourth disanother, five of thirty-four (15%) in the third, and utra of
seven
ber
trict. An objection was filed in only one lodestar case (representing 11% of lodestar cases in that
t v. N Septem
er
district and 6% of lodestar casesamb foured on combined). In contrast, rates of fee objecL in the iv districts 297
in
tion were higher in cases using the arch
cited 423 percentage method (see Figure 75). Since objections were
filed in percentage method6
5-5 cases 4.5 times as often as under lodestar, these results could be read
to indicate thato. 1
objections are more likely under the percentage method. However, one must
N
also consider that notices of proposed settlement identified fee-related amounts298 in 33% of the
lodestar cases compared to 78% of percentage method cases. That is, for all four districts combined, class members in percentage cases were given information about fee amounts 2.4 times as
often as in lodestar cases. Even considering this, however, there appeared to be less propensity
to object under lodestar for some reason. Note, however, that one cannot extrapolate these data
on a small number of cases to all class actions nationwide; factors other than those discussed
here may have caused these results.
Appeals were filed in 15% to 34% of study cases (see infra § 20). For three of the four districts, 3% to 7% of these appeals (four or fewer per district) involved attorneys’ fees issues,299
295. In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 822 (3d Cir.), cert.
denied, 116 S. Ct. 88 (1995).
296. See supra note 292.
297. The rate reflects the number of percentage method cases with at least one fee objection divided by the number of percentage method cases.
298. These notices described the proposed settlements and either stated the amount or range of fees or the percentage of the settlement fund to be allocated to fees, subject to court approval.
299. Not including appeals on sanctions.

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often accompanying appeals on other issues. In the fourth district, three fee-related appeals
constituted 25% of the court’s class action appeals. All fee-related appeals were challenges to the
award, denial, or reduction of plaintiffs’ counsel fees. In total, for the four districts, there were
ten such appeals. One of these cases, the General Motors Pick-Up Truck Litigation, resulted in
vacating a “settlement class” settlement that included $9.6 million in fee awards. The other appeals ended in fee-award affirmance (two cases), appeal dismissal (two cases), reversal of denial
of fees (one case), vacating the trial court’s reduction of fees (one case), and remanding for reconsideration (one case). The other two appeals were pending (see Tables 51 to 54).

(17) Trivial Remedies; Other Remedies
(a) How frequently did certified (b)(3) classes lead to relief that is relatively trivial in
comparison to attorneys’ fees?
Study results did not show recurring situations where (b)(3) actions produced nominal class
benefits in relation to attorneys’ fees. ( See also supra § 1(a) for a discussion of the average recovery per individual class member and of cases in which the average individual recovery was less
than $100.) We gauged this by determining, for each certified case with (b)(3) recovery, what
percentage of the gross monetary settlement was paid to class counsel. This fee-recovery rate
exceeded 40% in 11% of settled cases in two districts and in less than 5% of settled cases in the
other two courts (see Figure 67).300 In half of these cases, case files provided information that
rp.
l Corelief201accompanied
helped explain the “high” rates. For example, in some cases,tmonetary , was 7
u ica
by nonquantifiable (b)(2) benefits, such as a permanent injunction forrthe benefit of the class. In
race mbe 12
t
. Nu
other cases, the settlement produced relatively small payments to the class as well as to attorneys
ert v on Septe
b
detailed discussion of fee-recovery rates, see supra § 16(a).)
for the class. 301 (For a morein Lam
ived
In the four districts, d twelve cases h were certified solely under Rule 23(b)(3), attorneys’
cite in 423 arc that
fees were awarded but -56
no objectively quantifiable monetary relief was awarded to the class. Tao. 15relief and the attorneys’ fee awards in those cases. Assessing whether the
ble 46 summarizes the
N
relief is trivial in relation to the fees calls for subjective judgments that we leave to the readers.
The fee awards in these cases were generally the product of a stipulation (eight of nine cases for
which information was available). In one case, the General Motors Pick-up Truck Litigation, the
300. The “fee-recovery rate” exceeded 40% in the following numbers of cases: two of eighteen certified settled
cases with net monetary distribution in each of two districts, one of twenty-three cases in the third district, and zero
of nine cases in the fourth.
301. In the case with the highest fee-recovery rate (71%), a $34,000 monetary class recovery and $83,000 fee
award were accompanied by a prothonotary’s agreement to place future interpleaded funds in separate interestbearing accounts. The second highest rate (63%) involved a $3.6 million fee award, $ 300,000 in notice costs and a
$1.8 million net cash distribution to a certified class of approximately 2,000 stockholders that incurred stock losses.
The third highest rate (around 47%) was related to a $82,000 net monetary distribution to a class of terminated members of a health plan, with attorneys’ fees of $76,000. The fourth largest rate (45%) was based on a $21,000 net
monetary distribution and $ 17,500 in fees related to bank customers that received improper forms. Two other cases
had high rates (just over 40% in each). One was a securities case, where the court used the percentage of recovery
method but did not place a value on other nonclass benefits valued by class and settlement counsel at $8.3 million.
The other was a lodestar case with a net monetary settlement of $200,000 where no noneconomic benefits were apparent in the case file. There also may have been other factors, not apparent in case files, that affected the rates at
which fees were awarded.

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court of appeals cast doubt on the justification for the stipulated fees when it vacated the settlement. Judges reduced substantially two of the four fee requests that were not stipulated by the
parties.

(b) How frequently did certified (b)(2) classes lead to injunctive relief that is relatively
trivial in comparison to attorneys’ fees?
We looked at the percentage of certified (b)(2) cases that resulted in injunctive relief without any
substantive monetary distribution. We found variation among the districts, with the percentage
ranging from 0% (zero of three cases) in one district to 71% (five of seven cases) in another.302 In
just over half of these cases, attorneys’ fee awards were around $ 50,000 or less, with injunctive
relief ranging in scope from a nationwide nondiscrimination policy in a federal agency ($53,000
in fees) to a local housing authority’s rewiring of dwelling units ($6,600 in fees). It appears that
many would agree that the breadth of the results obtained was not trivial in comparison to the
size of the fee award in these cases.
Cases with fee awards greater than $150,000 resulted in the following relief:
• improving treatment and placement opportunities for developmentally disabled Medicaid recipients ($682,681);
• entering into a consent decree concerning abortion and family planning services
($224,810 in fees); and
• readjudicating claims for survivor and disability benefits ($167,500).p.
or
The comparatively high level of fees makes it more difficult to iassessC appropriateness after
cal their , 2017
ut
2
the fact. Given the breadth and complexity of these race however,rmany would consider the
ut cases, tembe 1
.N
relief to be nontrivial (see Table 47).
rt v
ep

be
nS
Lam ivedto charities or the like?
(c) How often were recoveries distributed o
in
rch
cited 423 settlements included distribution of settlement funds to a
Nine percent or less of approved a
6
charitable or other 15-5 organization.303 This occurred in a total of five cases in two dis. nonprofit
o48). One example is a settlement fund that donated $150,000 to the Chicago
N
tricts (see Table
Bar Foundation for specific programs on domestic abuse, juvenile justice, and mentoring.

(18) Duplicative or Overlapping Classes
Background. The core questions are: How common are duplicate or overlapping classes? What
difficulties were posed by such classes? Case law and commentary provide us with more information than the empirical data in the study. It is clear that multiple actions that are similar or
identical and brought in different forums can be problematic. Such problems include the de
facto surrender of jurisdiction by a court’s yielding priority to another action and intercourt and
intersystem consolidation.304 These multiple actions can result in conflicting or overlapping
302. The percentages of certified (b)(2) settlements that resulted in injunctive relief without any substantive
monetary distribution were as follows: 71% (five of seven settled certified (b)(2) cases) in one court, 44% (seven of
sixteen cases) in another district, 20% (one of five cases) in the third court, and 0% (zero of three cases) in the fourth.
303. The number of approved settlements with charitable distributions were as follows: three of thirty-four courtapproved settlements in one district, two of twenty-seven settlements in another, zero of thirty-four in the third, and
zero of eleven in the fourth.
304. See, e.g., Garcia-Mir v. Civiletti, 32 Fed. R. Serv. 2d (Callaghan) 509 (D. Kan. 1981) (court denied certification because of the danger of overlapping classes and of wasted judicial effort; the court found that there were cases

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classes that may produce inconsistent adjudications, duplication of effort, and confusion for
class members, litigants, and judges.305 “When such an overlap occurs, the individual’s claims
become subject to an ‘irrational resolution by a race to judgment,’” 306 and “[e]ven if absent
class members are permitted to opt out of any or all of the parallel lawsuits, no guarantee exists
that the actions of many individual class members choosing to opt out will resolve the conflict or
eliminate the overlap.”307 Problems arising from competing classes may benefit by consolidation of the actions in one court. 308
Data. We found that overlapping classes generally arose in related cases that were not consolidated with similar litigation pending in federal and state courts (see supra § 1(b)). Our data
uncovered five cases with what appeared to be duplicative or overlapping classes. The data
showed that those cases generated few difficulties, if any, for the court. In several instances, the
federal court avoided parallel proceedings by issuing a stay pending the completion of trial in
related state litigation. Aside from our search for file references to related and consolidated
cases, we did not inquire into the existence of competing class actions.

(19) Res Judicata
Call for Research. There are no data from the field study on this topic. It would be interesting to
pursue the extent to which opt-out plaintiffs or objecting class members filed an action on the
same issues that were addressed in the class action. Our data would permit identification of
p.
counsel in those cases and a follow-up questionnaire or interviewal Cor uncover interesting
might well
017
ic
and useful data.
ceut
12, 2
a
r

utr
be
t v. N Septem
er
mb
on
in La rchived
ed
cit
3a
5642the same class members and issues; the case was eventually transferred to the
pending in another district involving
15other district). No.

305. George T. Conway III, The Consolidation of Multistate Litigation in State Courts, 96 Yale L.J. 1099, 1101 &
n.11 (1987) (quoting Kennedy, Class Actions: The Right to Opt Out, 25 Ariz. L. Rev. 3, 81 (1983): “Among the hypothetical parade of horribles which can be projected is the scenario in which fifty competing, national, multistate opt
out class actions are brought on the same claims and all members remain silent in response to the fifty notices.”).
306. Id. at 1121 & n.12 (citing Miller & Crump, Jurisdiction and Choice of Law in Multistate Class Actions After
Phillips Petroleum Co. v. Shutts, 96 Yale L.J. 1, 70 (1986): “Professors Miller and Crump observe that a race to judgment among competing class actions would encourage litigants to engage in unseemly tactical behavior. ‘For example, defendants could forum shop by delaying or accelerating particular actions. Plaintiffs could collude with similarly
aligned parties in stalking horse litigation, diverting their opponents’ attention or seeking collateral advantages such
as the cumulative benefits of inconsistent discovery rulings.’” Id. at 1101 n.12 (quoting Miller & Crump, supra, at 24
(footnotes omitted))).
307. Id. at 1101.
308. Subclasses will often be necessary when independent actions are brought on behalf of classes that overlap or
conflict with classes represented in other actions. For example, in the settling Antibiotics cases, well over 100 actions
were filed, including several brought on behalf of nationwide classes. To avoid obvious conflicts, and to ease administrative chores, the consumer classes were redefined on a geographical basis, with states named as representatives of
statewide consumer classes. 2 Newberg & Conte, supra note 55, § 7.31, at 7-93 to 7-94 (citing West Virginia v. Chas.
Pfizer & Co., 314 F. Supp. 710 (S.D.N.Y. 1970), aff’d, 440 F.2d 1079 (2d Cir.), cert. denied, 404 U.S. 871 (1971)).
“Similarly, nonsettling Antibiotics actions were upheld as statewide classes after being transferred for coordinated
pretrial proceedings.” Id. at 7-94 (citing In re Coordinated Pretrial Proceedings in Antibiotics Antitrust Actions, 333
F. Supp. 278 (S.D.N.Y. 1971), nonsettling actions transferred, 320 F. Supp 586 (J.P.M.L. 1970).

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(20) Appeals
Background: Proposed Revision to Rule 23. Under the final judgment rule, 309 orders granting or
denying class certification are interlocutory and generally not appealable until the entry of a final
judgment;310 however, in certain cases courts have allowed interlocutory appeal under the limited exceptions of 28 U.S.C. §§ 1292(a) and (b).311 Generally,
[c]lass action certification rulings involve some factual analysis and thus do not qualify
as “a controlling question of law as to which there is substantial ground for difference
of opinion . . . . ” [28 U.S.C. § 1292(b).] In short, there is little likelihood of immediate
review of class action rulings even though such rulings may be crucial and controlling
in the future conduct of the case.312

Pendent appellate jurisdiction over an otherwise unappealable order is available only to the extent necessary to ensure meaningful review of an appealable order.313 Granting a petition for
writ of mandamus for certification review is rare. 314
The proposed revision to Rule 23 would add a provision that authorizes immediate appellate
review of class certification rulings by leave of the court of appeals. As described in the draft
committee note, this provision is intended to afford an opportunity for prompt correction of
error before the parties incur significant litigation or settlement costs.315 The underlying theory
is that class certification rulings very often have make-or-break significance for the litigation,

p.
l Cor 2017
,
utica decisions
309. Federal “courts of appeals . . . shall have jurisdiction of trace
appeals from all finalr 12 of the district courts.”
u
be
N
m
28 U.S.C. § 1291 (1988).
rt v. n (ordertdecertifying a class is not appealable under
ep e
310. Coopers & Lybrand v. Livesay, 437 be 463, 471 (1978)S
U.S.
Lam i ed o
28 U.S.C. § 1291); Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480 (1978) (not appealable under 28
di
ch Corp.
eGaryn 3 Packagingv v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d
ct
U.S.C. § 1292(a)(1)). Butisee
Plastic ar
42 failure to prosecute its individual claims created a final judgment; denial of
176 (2d Cir. 1990) (class representative’s
-56
o. 15
class certification merged into that judgment), cert. denied, 498 U.S. 1025 (1991).
N

311. Forbush v. J.C. Penney Co., 994 F.2d 1101 (5th Cir. 1993) (interlocutory appeal reversed denial of class certification); Gay v. Waiters & Dairy Lunchmen’s Union, 549 F.2d 1330 (9th Cir. 1977) (ruling on class certification
that is integral to a preliminary injunction ruling, also appealed, may be reviewed pursuant to 1292(a)). See also Castano v. American Tobacco Co., No. 95-30725, 1996 WL 273523, at *1 (5th Cir. May 23, 1996) (certifying class certification ruling for interlocutory appeal, pursuant to 28 U.S.C. § 1292(b)). But see Hoxworth v. Blinder, Robinson &
Co., Inc., 903 F.2d 186, 208–09 (3d Cir. 1990) (class certification not reviewable under pendent appellate jurisdiction
because preliminary injunction was vacated).
312. Downs, supra note 50, at 701.
313. Georgine v. Amchem Products, Inc., No. 94-1925, 1996 WL 242442, at *9 (3d Cir. May 10, l996) (holding
that “[t]o give full effect to the appellants’ right to review of the injunction, we must reach class certification”). Hoxworth, 903 F.2d at 209.
314. In re Catawba Indian Tribe of S.C., 973 F.2d 1133 (4th Cir. 1992) (writ of mandamus will not issue unless
denying certification amounted to a usurpation of judicial power); Interpace Corp. v. Philadelphia, 438 F.2d 401 (3d
Cir. 1971) (writ of mandamus power is rarely exercised in class action context). But see In re American Medical Systems, Inc., 75 F.3d 1069, 1090 (6th Cir. 1996) (ruling that writ of mandamus to decertify nationwide plaintiff class was
justified because of trial court’s “total disregard of the requirements of Rule 23” in medical device products liability
case); In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1297 (7th Cir.) (mandamus justified; district court certification
of class was in error and delaying review would cause irreparable harm), cert. denied, 116 S. Ct. 184 (1995).
315. Appellate review would be “available only by leave of the court of appeals promptly sought, and proceedings
in the district court . . . are not stayed . . . unless the district judge or court of appeals so orders.” Cooper, supra note
14, Committee Note.

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with denial of certification sometimes leading to quick dismissal of the case and with granting of
certification at times seen as forcing defendants to settle. (See supra § 14(a).) The draft committee note anticipates that orders permitting immediate appellate review will be “rare.” Others
speculate about whether losing parties will seek interlocutory appellate review of nearly every
decision on certification.
In 1986, the Special Committee on Class Action Improvements of the ABA Section of Litigation recommended a code change that would be similar in effect to the proposed rule
amendment.316 The ABA special committee proposed amending the jurisdictional provisions of
28 U.S.C. § 1292 to permit appellate review of a certification ruling by permission of the court of
appeals “with accompanying safeguards designed to deter vexatious or delaying resort to interlocutory review.”317 The ABA special committee also anticipated that orders permitting such
interlocutory review would be rare. 318
Providing for discretionary interlocutory appeal of certification rulings might dovetail with
another proposed change: making some level of probable success on the merits an additional
element or factor for the court to consider in deciding whether to certify a class. (See supra §
5(c).) Some argue that both proposed changes would affect the impact of the certification ruling
on parties’ bargaining power during settlement negotiations. Some maintain that allowing interlocutory appeal on certification would be even more important if Rule 23 provided for consideration of probable success on the merits, because the certification ruling would make an
p.
even stronger statement on the potential outcome of a case than under thercurrent rule.
7
l Co

, 201
utica
race mber 12
Nut
Data. In the four districts, the rate of filing at.least one appeal in class action cases ranged from
ert v on Septe
b
319 For this
15% to 34% (see Figure 76).n Lam purpose, rate of appeal is defined as the number of cases
i was filedcdivided by the number of cases in the study.320 It is imived
in which at least onetappeal 3 ar h
ci ed 42
portant to recognize, 5-56 that the pool of cases from which parties generally might appeal
however,
o 1
is far less than all.class actions in the study, because study cases exhibited a high rate of settleN
(a) How often were appeals filed?

ment and settlement judgments are infrequently appealed (see Table 39 and discussion at supra
§ 14(a)). The overall rate of appeal (see Figure 76) might have been even higher had it not been
for the high rate of class settlement. Significant differences in appeal rates for settled cases

316. The ABA special committee made this recommendation prior to the enactment of 28 U.S.C. § 1292(e)
(Supp. 1993) which provides the statutory authority for using the rule-making process to permit an appeal of interlocutory orders.
317. ABA Special Committee Report, supra note 10, at 200. The report cited 28 U.S.C. § 1927 (1988), Fed. R.
Civ. P. 7, Fed. R. App. P. 38, and inherent judicial power as “ample deterrents against abusive resort to interlocutory
review.” Id. at 211.
318. Id. at 211.
319. In the time study, 14% of the class actions included one or more appeals. Willging et al., supra note 26, at 28.
For discussion and statistics on appeal rates in federal civil cases, see generally Carol Krafka et al., Stalking the Increase in the Rate of Federal Civil Appeals 6–7, n.13 (Federal Judicial Center 1995); Judith A. McKenna, Structural
and Other Alternatives for the Federal Courts of Appeals: Report to the United States Congress and the Judicial
Conference of the United States 29–30 (Federal Judicial Center 1993); Richard A. Posner, The Federal Courts: Crisis
and Reform 89–91 (1985).
320. There are other ways to estimate appeal rates for these and other purposes. See, e.g., Krafka et al., supra note
319, at 4–6, 21–22; McKenna, supra note 319, at 29 & n.57.

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(appeal rates ranging from 9% to 21%) and nonsettled cases (ranging from 33% to 43%) were
observed in three districts. In the fourth court, the rate of appeal was the same (15%) for both
settled and nonsettled cases.
In three districts, noncertified cases were more likely to have one or more appeals than certified cases (see Figure 76). These findings may reflect the higher rate of settlement found in
certified cases (see Table 39 and discussion at supra § 14(a)(i)). In the fourth district, there was
no difference in appeal rates for certified and noncertified cases.
Because of the elevated stakes in trial cases, one might expect that the percentage of cases
that resulted in appeal would be higher for cases that go to trial compared to those that do not.
This expectation was borne out for the four districts in the aggregate. Cases in the study resulted in eighteen trials and twelve of those trials led to appeals on trial-related issues (see Tables 43 and 44),321 a 6 7% rate of appeal.322 Looking only at fully completed trials, that is, excluding four cases that settled during trial (three of which resulted in no appeal), the rate of appeal was higher (79%). Given that these rates are for a small number of trials in cases terminated
in a two-year period in four districts combined, they cannot be used to predict the rates for class
actions nationally. It is interesting to note, however, that these appeal rates are much higher
than past findings of the nation-wide appeal rate for all civil cases that terminated by trial. For
example, a 1981 study found a 24% rate of appeal after full trials in 18,500 cases terminating
between 1977 and the first half of 1978.323
.
There were twelve, thirty-four, thirty-six, and fifty-six appealsl in the p districts. All but
Cor four 017
a
two of the appeals were from a final judgment or order.euticcases with,appellate review inMost
2 2
rac appealser about a third of the cases
t
umultipletemb in 1
cluded only one appeal. Two districts experienced
v. N districts
with appeals; the comparable rate for bert
the other twon Sep was around 10% (see Figure 77).
m
o

La
ed
3
Data: Overview of Results 642
5-5on Appeal. Few of the appeals resulted in altering the prior decision of
1
the trial judge (see Figure 78).324 The appellate courts reversed, vacated, or remanded in full in
No.
in
(b) How often didiappeals alterarcprior decision of the trial judge?
the hiv
c ted

about 15% of the appeals from three districts and 6% from the fourth.325 Appellate decisions
affirmed in full with much greater frequency—in about 50% of decided appeals in three districts
and in 33% in the fourth court. The other frequent disposition was dismissal of the appeal, ei-

321. Eight of 12 appeals of trial results led to an appellate ruling and the other four appeals were dismissed (see
Tables 43 and 44).
322. In computing rate of appeal, for this purpose, the numerator was the number of post-trial appeals in cases
where trial commenced; the denominator was the number of study cases where a trial commenced.
323. Gordon Bermant et al., Protracted Civil Trials: Views from the Bench and the Bar, Table 6, at 41 (Federal
Judicial Center 1981). See also J. Woodford Howard, Jr., Court of Appeals in the Federal Judicial System: A Study of
the Second, Fifth, and District of Columbia Circuits, Table 2.5, at 35 (1981).
324. The disposition data shown in Figure 78 is broken down further by appeals filed by plaintiffs (see Figure 79)
and defendants (see Figure 80). Figures 78–80 show the number of decided appeals, rather than the number of cases
with appeals; some cases had more than one appeal.
325. These percentages were obtained by dividing the number of appellate reversals, vacations, or remands for
each district by the total number of appeals filed in study cases in that district, with the denominator excluding appeals where the court of appeals had not yet issued a decision. These five excluded appeals, shown in the legend for
Figure 78, amount to about 3.6% of appeals filed in study cases in the four districts combined.

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ther by the court of appeals or by stipulation of the parties. This occurred at rates in the four
districts ranging from 28% to 36% of decided appeals (see Figure 78).326
Plaintiffs were appellants more often than defendants were. Plaintiffs filed about 75% of the
appeals in three districts and 85% in the fourth.327 The preliminary time study found that
plaintiffs filed 71% of the appeals in that sample of fifty-one class actions nation-wide.328
In the instant study, between 13% and 26% of plaintiffs’ appeals were successful, in whole or
in part, in reversing or vacating trial court decisions in three courts.329 The fourth court did not
have a sufficient number of appeals for this stratification (see Figure 79). Few defendants’ appeals resulted in reversal or vacation (see Figure 80).
Data: Reversals. Generally in study cases, after appellate reversal and remand of a dispositive
order, case resolution in favor of the class appeared more likely if a class had been certified prior
to the appeal than if no class had been certified. While other explanations may be possible for
these observations, our study data establish a plausible hypothesis that may warrant further
testing.
Reversals in Cases with Certified Classes. Viewing the four districts as an aggregate, appellate reversals in whole or in part occurred in seven cases where the district court had certified a
class prior to the appeal (see Table 49). In four of the seven cases, after the appellate court reversed a final judgment, the district court on remand approved a class settlement. The judgments appealed from in three of these four cases had been dispositive in favor of the defenp.
dants.330 The fourth case settled despite the court of appeals reversal of summary judgment for
l Cor 2017
a
the plaintiff class on liability. In the other three of these seven tic the12, of appeals vacated
u cases, court
race now ber in the district court),
t
a settlement (the General Motors Pick-Up Truck Litigationtem pending
v. Nu Se in
ertfor defendants p another case (also pending), and in
affirmed nearly all of a summary judgment
on
amb of defendants with instructions to dismiss the case for
the third case vacated a d in L in favor ived
decision
ch
e
ct
3 ar
lack of jurisdiction. i
5642Class Previously Certified. Thirteen reversals occurred in cases
Reversals in Cases 15 with No
No.not certified before appeal, again looking at the four districts as an aggregate.
where a class was

326. These calculations exclude appeals where no appellate disposition information was available. See supra note
325.
327. This is not surprising given (1) the frequency and outcome of defendant motions to dismiss some or all of
plaintiff claims, (2) the frequency and outcome of plaintiff motions for class certification, and (3) the outcome of trials
in study cases. For example, motions to dismiss were granted in full or in part in about 75% of the rulings on motions
to dismiss in two districts and in about 48% of such rulings in the other two districts (see Table 25). The district
court denied certification of a plaintiff class in about one-third of the rulings on class certification in three districts
and in half of the rulings in the fourth district (see supra § 5). For all four districts combined, plaintiffs were unsuccessful in about 70% of the trials that commenced, not counting trials that settled before completion (see Tables 43
and 44).
328. Willging et al., supra note 26, at 28.
329. See supra note 326.
330. In the first of these three cases, an appellate panel vacated summary judgment for the defendants. In the second case, the court of appeals reversed the district court’s dismissal of the case for failure to state a claim; the district
court had certified a plaintiff class on the same date that it dismissed the case. In the third settled case, the court of
appeals twice reversed and remanded summary judgments for the defendants, once before and once after class certification.

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The aftermath of reversals in these cases did not appear as favorable to the class as where a class
had been certified before the filing of the appeal (see Table 50 compared to Table 49).
All but one of the thirteen were plaintiff appeals of claim dismissal or summary judgment for
the defendants.331 Despite appellate reversal of these judgments,332 remand led to dismissal or
no substantive success on plaintiffs’ original claims in all but five of the twelve cases with plaintiff appeals; three of those five remanded cases are pending in district court. Another one of the
five resulted in class certification and class settlement after remand. In the one additional case, a
class was certified after reversal of the first summary judgment ruling for defendants; the case
eventually settled after appellate reversal of a second summary judgment ruling for defendants.333
Data: Issues on Appeal. We categorized the principal issues and related outcomes on appeal
in Tables 51 through 54.
Implications for Proposed Amendments to Rule 23. Study data on appeals can be interpreted
in several ways but they should not be viewed as predictors of the universe of class action cases
nation-wide. Because study data reflect a small number of appeals in a limited time period in
only four districts, we cannot make broad-based conclusions.
Current supporters of the rule change have maintained that an appellate reversal of the class
certification decision could change the life of a case in ways far beyond the class certification
itself. Some might read the study’s reversal and remand findings to suggest that certifying a class
p.
before a plaintiffs’ appeal of dismissal or summary judgment had a significant impact on the
l Cor 2017
t a
eventual outcome of the case. Not surprisingly, cases certifiedic
2
aceu before such,appeal had a higher
rcases with no er 1certification before the
likelihood of class settlement after remand than Nut
. those eptemb class
ert v n S
appeal, suggesting the potential importance to a plaintiff class of a favorable and timely ruling on
ambthe vedtoosuggest that the absence of class certification
certification.334 Some also might read chidata
in L
cited 423 armay decrease the likelihood of settlement upon remand,
before appeal of a dispositive order
6
even if the appellate15-5 on the dispositive motion is fully favorable to the plaintiff.
ruling
o. of the data parallel the general observation that certified cases settled at a
N
These readings
higher rate than noncertified cases (see supra § 14(a)). These outcomes may indicate a higher
331. In the defendants’ appeal in one case, the appellate panel vacated the district court’s injunction and award of
nominal damages to individual plaintiffs, resulting in nominal damages on remand.
332. For example, in one case, the court of appeals vacated partial summary judgment for the defendants with
instructions to dismiss plaintiffs’ claims. In another case, plaintiffs and intervenors successfully challenged the district
court’s dismissal of the case but were unsuccessful in getting a reversal of the denial of class certification. In a third
case, the court of appeals reversed in part the grant of defendant’s motion for summary judgment.
333. Interestingly, there was no district court ruling on certification prior to the initial appeal in these two settled
cases, whereas in over half of the other reversal cases the trial court ruled on, but denied, class certification before the
filing of the appeal.
334. Some may argue that our results illustrate that rulings on dispositive motions, before giving plaintiffs the
opportunity to have their class certified, could be viewed as a detriment to plaintiffs (see Table 50). If this phenomenon is widespread beyond the four districts, plaintiffs’ lawyers might conclude after considering other factors that
they prefer the issuance of a certification ruling before any ruling on dispositive motions, rather than run the risk of
waiting and possibly precluding any future ruling on certification. See supra § 14(a)(i). Some plaintiffs’ counsel might
see this as a reason to oppose the proposed amendment to Rule 23 that would authorize, and thus possibly promote,
district court rulings on dispositive motions prior to rulings on class certification, putting aside the cost of notice
problem for purposes of this discussion. See supra § 5(c).

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level of merit in certified cases than in noncertified cases. Although one cannot conclude from
our data that class certification causes settlement, class certification before appeal could be
viewed as one of the factors that led to eventual settlement. But, defendants and their counsel
may view these cases as illustrations to support their arguments that certification exerts proplaintiff pressure on defendants.

(c) To what extent did appellate review serve to correct errors in procedural
decisions relating to the class action mechanism, such as class certification?
Data: Appeals Involving Certification. Study results suggest that litigants infrequently seek appellate review of district court decisions involving class action mechanics, such as certification
or class settlement. For example, in the four districts combined, seven cases included appeals
on class certification issues (see Table 55).
Putative class representatives appealed the denial of class certification in a total of five cases;
two of the denials were reversed and remanded, two were affirmed, and one appeal was dismissed. After these appellate rulings, three of the cases were dismissed without class certification and two are pending in the district court. A class was certified in one of the pending cases;
nonclass claims are pending in the other case.
Parties other than class representatives filed certification appeals in two cases. In the General
Motors Pick-Up Truck Litigation, objecting class members successfully challenged a class settlement judgment and the standards used to certify the class. And, in another case, defendants
p.
l Cor 2017 district
twice appealed certification of a plaintiffs’ class. The appellate a
,
uticcourt deemed the first
When the
court certification decision as interlocutory and nottrace
reviewable. 335 er 12 certification deciu
bof appeals affirmed class cersion later came up for appellate review with v. N order, theem
ept court
ert a final
tification.
amb ved on S
in L
Discussion. There ed be several hi
cit could423 arcexplanations for the small number of appeals involving
class certification. For -56
example, most class action appeals, given that they were nearly always
o. 15
filed after a final judgment, may have excluded certification issues because other issues, such as
N
the merits of the claims, may have superseded the need or feasibility of revisiting the certification issue. Also, there was no apparent opposition to certification with respect to 50% to 60% of
certification orders in the study. (See supra § 6(a); see also supra § 2(a).) In about 18% of the
study’s certified class actions, the parties submitted a proposed settlement before or simultaneously with the first motion to certify. (See supra § 5(d).)
When certification is granted, some defendants might settle rather than incur the costs of
litigating to final judgment and appeal.336 Likewise, when certification is denied, individual
plaintiffs might be unwilling to incur expenses disproportionate to their individual recoveries to
litigate further to secure appellate review on certification.337 These projections of the impact on
335. Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 209 (3d Cir. 1990).
336. See Cooper, supra note 14, Committee Note.
337. As described supra in § 20(c), the court of appeals reversed the denial of certification in two of the seven
cases with appeals on certification issues. Such reversals have been cited as one of the reasons for authorizing interlocutory appeals concerning certification. Under the current rule, if the denial of class certification is reversed on
appeal after the entry of a final judgment in the case, putative class members can delay their decision to opt in until
remand with full knowledge of the nature of the final judgment. Some have argued that this scenario gives putative
class members the advantage of “one way intervention.” See Cooper, supra note 14, Committee Note. The infre-

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plaintiffs and defendants can be viewed as consistent with the reasoning offered in the ABA special committee’s commentary to its 1986 recommendation on interlocutory appeal.338
Regardless of the reasons, the dearth of certification appeals in the study does not necessarily
mean that the revised rule would not have generated more appeals in these cases had it been in
effect during the study period. Some believe that, since certification is a settlement-significant
event, if parties can seek appeal they will, especially defendants challenging the grant of certification. (See supra § 14(a)(i).) The discretionary nature of the proposed rule, however, is designed to be a guard against abuse of the appellate process.
Estimating Appeals of Certification Rulings Under the Proposed Amendment. Our data may
be useful as a description of the number of certification appeals currently taken. One might reasonably expect at least that many interlocutory appeals under the proposed amendment. Our
data cannot predict, however, how many parties will seek such appellate review and how these
interlocutory appeals will affect settlement prospects.
Even though few appeals in study cases involved the certification ruling itself, an analysis of
all appeals in cases with certification rulings may provide some insight into how many additional appeals the amended rule might bring. In two districts nearly two-thirds of class actions
included at least one ruling on certification, nearly half did in the third district, but only 36%
did in the fourth (see Figure 81). Most (84% to 100%) of the appeals in these cases occurred after the ruling on certification (see Figure 82). Appeals, of any kind, in cases with rulings on cer.
tification occurred at about the same rate (19% to 34%) as in cases without p ruling on certificl Corany2017
ation (see Figure 83 compared to Figure 76).
,
utica
race mbof r 12 certification deciutgrant appeals e routine
Many believe that the appellate courts will N
te
v. notwith rulings on certification resulted in any
sions. The finding that only 19% mbertof cases n Sep
to 34%
o
a could support the draft committee note’s statement that the
appeal on any issue (seed in L83) chived
Figure
cite 423 ar
number of orders granting appeal under the proposed amendment would be rare. However, as
6
discussed above, . 15-5 strongly held views that parties will seek review of certification rulo there are that the proposed revision adding consideration of probable sucings as freelyN possible and
as
cess would increase the significance of the certification ruling.
Data: Appeals on Other Class Action Issues. In addition to the certification appeals described
above, only a small number of other appeals could be identified as characteristic of class actions.
Most of these were fee-award appeals (four or fewer in each district). Arguably, these are not
uniquely characteristic of class actions, particularly where a fee-shifting statute applied. (See
supra § 16(d) for a discussion of the results on these appeals.)

quency of these types of cases in the study does not necessarily mean that they occur as infrequently in other cases or
in other districts.
338. The ABA committee commentary stated:
If [class certification] is denied, the individual plaintiff must abandon his efforts to represent the alleged class or
incur expenses wholly disproportionate to his individual recovery in order to secure appellate review of the certification ruling. If, as often happens, the individual plaintiff is unwilling to incur such an expense, the case is dismissed and the certification ruling is never reviewed. . . . Conversely, if class certification is erroneously granted, a
defendant faces potentially ruinous liability and may be forced to settle a case rather than run the economic risk of
trial in order to secure review of the certification ruling.

ABA Special Committee Report, supra note 10, at 210–11.

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In addition, prospective intervenors appealed the denial of intervention in one case in one
district and in two cases in another. None of the intervenors was successful on appeal.
Objecting class members sought appellate review of the fairness and reasonableness of a class
settlement in only one case, the General Motors Pick-Up Truck Litigation. That settlement was
vacated. In two other appeals, a third-party defendant challenged the district court’s approval of
a settlement; however, those appeals were dismissed. Finally, in one case, the trial court’s disqualification of plaintiffs’ counsel was affirmed as part of an appeal of the district court’s decision on class certification.
In section 10(c) supra, we saw that the certified class actions included twenty-one objections
to some aspect of the notice process. But, no appeal involved any issue related to notice to the
class.

(21) Class Action Attorneys
(a) How extensive was the class action bar across the four districts?
Data and Discussion. Some have expressed concerns about the prevalence of “class action
firms” that appear with great frequency in class actions across the country.339 Related to these
concerns are questions concerning conflicts of interest that arise in class actions and even allegations of collusion between class counsel, defense counsel, and representative parties in certain
p.
cases.340
l Cor in 2017the 152 cerUsing court files,341 we identified lead, co-lead, and liaison ca
uti counsel342 , 150 of
343 and in 4 noncertified cases.344 These attorneys were from 160 differrace mber 12
tified cases in the study
Nut
ent law firms from across the country. In rt v. cases, more than one firm served as class counsel
e most on Septe
mb
and at least one of the lead attorneys was ed within the district where the case was being
in La rchivfrom
heard.
cited 423 a
Two-thirds of the5-5firms had offices within the district where their respective cases were
160 6
.1
omight expect given the districts studied, most of these firms had offices in the
N
pending. As one
Philadelphia, Miami, Chicago, or San Francisco metropolitan areas and they appeared more
often within their respective districts than in the other study districts. However, certain Philadelphia firms had offices in California or Florida and appeared frequently outside E.D. Pa.
339. See generally Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 Stan. L. Rev. 497, 521–22, 545–48 (1991).
340. See generally Coffee, Unfaithful Champion, supra note 262, at 37–38; Senate Staff Report, supra note 8, at
61–62, 73–76.
341. Court files, of course, would not identify behind-the-scenes participation by lawyers who did not enter an
appearance or identify themselves in a settlement or other document.
342. For definition and discussion of lead counsel and liaison counsel, see MCL 3d, supra note 34, § 20.22.
343. The court docket indicated that plaintiffs in the other two certified cases appeared pro se.
344. In 107 certified cases and 4 noncertified cases in the study, we identified counsel from court orders appointing class counsel or from notices to the class that included the name of class counsel. These 111 cases were as follows:
31 in E.D. Pa., 12 in S.D. Fla., 36 in N.D. Ill., and 32 in N.D. Cal. In 8 of the 111 cases, liaison counsel were appointed
in addition to lead or co-lead counsel; in 1 case lead counsel was appointed for a certified defendants’ class.
For 43 additional certified cases where court orders or class notices did not identify lead or co-lead counsel, we
assumed that plaintiffs’ attorneys listed on the docket sheets were lead or co-lead counsel. There were 24 such cases
in E.D. Pa., none in S.D. Fla., 15 in N.D. Ill., and 4 in N.D. Cal.

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A third of the 160 firms were from outside the study districts and generally appeared as colead counsel. Most of these firms were from New York City (18 firms), Los Angeles (5 firms), or
Washington, D.C. (5 firms). Other firms hailed from various states, including Ohio (4 firms),
Minnesota (3 firms), Massachusetts (2 firms), and Michigan (2 firms).

(b) How often did the same attorneys appear as counsel for the class in different cases
and in different courts?
Data. As an indication of how often the same attorneys appeared as class counsel in different
cases in different courts, we looked at the firms that were lead or co-lead counsel in four or more
cases.345 For the four districts combined, there were twelve such firms in ninety-five cases. All
but two were certified cases. This means that these twelve firms were lead or co-lead counsel in
63% of the certified cases in the study.
One firm was lead or co-lead in seventeen cases and liaison counsel in two cases. These
nineteen cases were spread more or less evenly among three districts, with no cases in N.D. Ill.
Two other firms were each lead or co-lead counsel in about fifteen cases in three districts, again
with no cases in N.D. Ill. One Washington, D.C., firm was in four cases in three districts. The
other eight firms appeared almost exclusively in cases in their own districts. Interestingly,
among these eight firms, the three Chicago firms did not appear outside N.D. Ill. (see Table
56).

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345. Each consolidation of cases is counted as one case.

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Conclusion
In this section, we summarize some of the more intriguing findings, discuss implications for
policy makers, and suggest areas for future research.
Summary of significant findings. Based on assumptions in the ABA committee report, we
expected to find considerable litigation over the appropriate Rule 23 category,346 judicial reluctance to examine the merits of cases before ruling on class certification,347 and limited opportunities for appeal of certification rulings before final judgment.
We found little litigation about which Rule 23 category was appropriate. This finding across
four districts suggests that the need for collapsing Rule 23’s three categories is not as critical as
some have suggested, but the question of whether the amount of litigation we found would justify a rule change is a policy question. Further, collapsing categories could create unintended
rp. out,
consequences, such as clouding existing case precedent on noticing,o
l C opting 017and similar
ica
,
matters. Our finding raises questions about the needaceut change but 2
r for a rule ber 12 could not address
ut the rule.m
whether there would be any harmful effecttof changing pte
v. N Se
ber
We also found, contrary to a am
d on
L premise underlying the ABA special committee’s recommendation, that judges frequently ruled on chive to dismiss and motions for summary judgment
ed in 3 ar motions
cit certification. Among judges who did not so rule, however, we cannot
prior to ruling on class 5642
15rule out the possibility that some may have considered the absence of express permission for
No. rulings to be a factor that restrained them from so ruling. Again, our data
precertification merits
do not suggest that the proposed change would have harmful effects. An unintended, but not
necessarily harmful, consequence of the proposed change might be, for example, a dramatic
shift in allocating the costs of notice. Our data suggest that the parties often appear to avoid imposing the full cost of notice on the proponent of the class despite the clear ruling in Eisen v.
Carlisle & Jacqueline.348 Explicitly permitting precertification rulings on the merits would remove one of Eisen’s major premises and make the rule consistent with the general practice that
we found.
Concerning interlocutory appeals, 349 study data confirmed the assumption in the ABA
committee report that there are limited opportunities for appellate review, interlocutory or not,
of decisions on certification. We also found limited success by appellants in altering district
346. ABA Special Committee Report, supra note 10, at 3–4 (“this problem arises frequently”).
347. Id. at 10 (“Clarification [is needed] to eliminate confusion concerning proper treatment of pre-certification
motions . . . and to authorize consideration of such motions prior to certification of the class. . . .”).
348. 417 U.S. 156 (1974).
349. ABA Special Committee Report, supra note 10, at 10 (recommending discretionary interlocutory appellate
review of rulings on certification).

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court decisions generally and few appeals of certification decisions. Whether the paucity of successful appeals of certification decisions is attributable to the lack of opportunity for earlier appeals of certification decisions or to the lack of appealable issues that survive final judgment
cannot be answered with our data for various reasons. For example, because parties often settled certified class actions, only dissenting class members or intervenors would have retained a
right to appeal. Thus, the number of appeals we found is not necessarily a measure of the number of issues that might have been candidates for interlocutory appeal immediately after the certification decision.
Based on anecdotal evidence, we expected to find a high level of abuse in the form of attorneys’ fees that were disproportionate to the class recoveries.350 Instead we found that attorneys’
fees were generally in the traditional range of approximately one-third of the total settlement.
While attorneys clearly derived substantial benefits from settlements, the recoveries to the class
in most cases were not trivial in comparison to the fees. But, recoveries by individual class
members were in amounts that could not be expected to support individual actions. This
finding confirms that many cases satisfy an underlying purpose of Rule 23, which is to provide a
mechanism for the collective litigation of relatively small claims that would not otherwise support cost-effective litigation. Our findings, however, do not address the monetary value or
sufficiency of plaintiffs’ recoveries in relation to any monetary losses they may have incurred.
Anecdotal evidence also led us to expect to find substantial evidence of “strike suits” where
.
filing a class action or certifying a class coerced settlement without orp to the merits of
l C regard 017
a
in the study
claims.351 Instead we found that although certified cases ceutic settled,at a higher rate than
2 2
ra indications1that settlement was cout
ber
cases not certified as class actions, there were no objectivetem
v. N Sep
erced by class certification. Rather, befound that settlements often appeared to be the comwe rt
m
d on
n La
bined product of a case surviving a motionvedismiss and/or a motion for summary judgment as
eda iclass 3 archi to the size of the potential liability affected settlecit
well as being certified as 42 action. Whether
6
ment was beyond.the 5-5 of the current study.
o 1 scope
N
On the other hand, we found a sizable number of cases that might be characterized as unsuccessful strike suits, that is, cases that were filed as class actions and never certified as such. Such
cases were often found to be without merit and were terminated by rulings on motions to dismiss or motions for summary judgment, not by settlements, coerced or otherwise. These data
suggest that judges generally rule promptly on the merits of claims and that these rulings frequently dispose of unmeritorious claims.
One of the more surprising findings was that settlement and trial rates for cases filed as class
actions were not much different from settlement and trial rates for civil cases generally.352 The
findings on settlement and trial rates are consistent with a general trend toward fewer trials and
more settlements in civil litigation in federal district courts.353
350. See, e.g., Senate Staff Report, supra note 8, at 7 (“settlements yield large fees for plaintiffs’ lawyers but compensate investors for only a fraction of their actual losses”); see also Private Securities Litigation Reform Act of 1995,
15 U.S.C.A. § 77z-1(a)(6) (West Supp. 1996) (attorneys’ fees in securities class actions shall be limited to “a reasonable percentage of the amount of any damages and prejudgment interest actually paid to the class”).
351. See text accompanying supra notes 100 to 109 (§ 5(c)) and notes 211 to 215 (§ 14(a)).
352. See text accompanying supra notes 46 to 49 (§ 2(b)).
353. See Donna Stienstra & Thomas E. Willging, Alternatives to Litigation: Do They Have a Place in the Federal
District Courts 33–36, 68 (Federal Judicial Center 1995) (federal civil trial rate diminished from more than 7% to less

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Addressing one of the advisory committee’s fundamental questions, we found that there are
significant numbers of “routine” class actions that represent relatively standard or “easy” applications of Rule 23, especially in the securities and civil rights contexts. This finding suggests
that there are well-established applications of Rule 23 that might be affected by a major restructuring of class action procedures.
Calls for research. In many respects, this study report represents a threshold empirical look
at contemporary class actions. Because of time and budget constraints, we were unable to address certain issues that the advisory committee identified and, in the course of our research, we
came across additional issues that warrant further study. We noted those issues in the various
sections of the report and summarize them here primarily with the hope that we might stimulate
other researchers to pursue them.
There is a basic need for research to determine the incidence or volume of class actions
throughout the ninety-four districts of the federal system. Nation-wide statistics on class actions
are reported to and by the Administrative Office of the U.S. Courts, but that reporting is not
complete. For the four courts in this study we identified the majority of cases selected for the
study by using electronic searches of dockets and databases of published opinions; the majority
of the study cases could not be found in the statistics reported to the Administrative Office.354
Similar searches for a scientifically selected sample of the other ninety districts would be required to get a clear picture of the national incidence of class action activity.
p.
The advisory committee sought information about class representatives that we7
l Cor 201 were unable
tica
to provide given the limits of our time and resources. Interviews of lawyers and class represenaceu ber how,
rclearer picture of 12 representatives and
tatives would be necessary, for example, to develop t
m
. Nu a
ert v Along Septe interviews of nonrepresentaattorneys come to be involved in class actions. on similar lines,
b
am ved
tive class members, especially L
in those who iparticipate in the process by filing objections,
ch
edprovide anropportunity to examine in-depth any “grass roots” claims,
t
or opt-out notices ci
would 423 a
dissat56
5-class action settlements.
isfaction with particular
1
No.
Some researchers have attempted to assess the percentage of individual loss that class action
settlements redress.355 Surveying class members might provide a better source of information
about individual damages and the percentage of those damages recovered through the class actions process. Further, an expanded analysis of the content of notices sent to class members
could provide more complete information about the clarity and effectiveness of notices in communicating relevant information about settlements.356
Also, study of the relationship among multiple filings of class actions seems in order. We
encountered related cases in state and federal courts and noted their presence. 357 A more indepth look at such overlapping cases might provide insights into ways to improve federal–state
coordination and federal management of multidistrict and intradistrict consolidations.

than 4% between 1970 and 1993).
354. See the section “Identification and Definition of Class Actions” in Appendix D, infra, and Table 57.
355. See Senate Staff Report, supra note 8, at 151–61 (summarizing studies of whether the merits matter in securities class actions).
356. See text accompanying supra notes 177 to 185 (§ 10(d)).
357. See text accompanying supra notes 32 to 41 (§2(b)).

Conclusion

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Studying the res judicata effects of class settlements or adjudication would also be another
worthy candidate for further research. In a similar vein, studying the frequency and nature of
satellite or subsequent litigation by class members who opt out could generate data comparing
class and individual recoveries and could thereby facilitate examining the sufficiency of class
action settlements.
These calls for research suggest that there is much to be done before systematic data are
available to put into perspective the anecdotes and generalizations that long have been driving
the debate about class actions.

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Appendix A
PROPOSED RULE 23—1993
Rule 23. Class Actions.
(a) Prerequisites. One or more members of a class may sue or be sued as representatives on behalf of all
if—with respect to the claims, defenses, or issues certified for class action treatment—
(1) the members are so numerous that the joinder of all is impracticable;
(2) legal or factual questions are common to the class;
(3) the representative parties’ positions typify those of the class;
(4) the representative parties and their attorneys are willing and able to fairly and adequately protect
the interests of all persons while members of the class until relieved by the court from that
fiduciary duty; and
p.
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(5) a class action is superior to other available methods for thetfaira efficient adjudication of the
,
u ic and
controversy.
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ut
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(b) Whether a Class Action Is Superior. The matters pertinent in deciding under (a)(5) whether a class
te
rt v.
beinclude: on Sep
action is superior to other available methods
am ved
L
(1) the extent to which d in actionschi against individual members might result in
e
ar by or
citor separateadjudications that would establish incompatible standards of conduct
42
(A) inconsistent varying 3
-56
for theo. 15
party opposing the class, or
N
(B) adjudications that, as a practical matter, would dispose of the nonparty members’ interests or
reduce their ability to protect their interests;
(2) the extent to which the relief may take the form of an injunction or declaratory judgment respecting
the class as a whole;
(3) the extent to which common questions of law or fact predominate over any questions affecting only
individual members;
(4) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(5) the extent and nature of any related litigation already begun by or against members of the class;
(6) the desirability or undesirability of concentrating the litigation in the particular forum; and
(7) the likely difficulties in managing a class action which will be eliminated or significantly reduced if
the controversy is adjudicated by other available means.
(c) Determinations by Order Whether Class Action To Be Certified; Notice and Membership in
Class; Judgment; Multiple Classes and Subclasses.
(1) As soon as practicable after persons sue or are sued as representatives of a class, the court must
determine by order whether and with respect to what claims, defenses, or issues the action should
be certified as a class action.

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(A) An order certifying a class action must describe the class and determine whether, when, how,
and under what conditions putative members may elect to be excluded from, or included in,
the class. The matters pertinent to this determination will ordinarily include:
(i) the nature of the controversy and the relief sought;
(ii) the extent and nature of the members’ injuries or liability;
(iii) potential conflicts of interest among members;
(iv) the interest of the party opposing the class in securing a final and consistent resolution of the
matters in controversy; and
(v) the inefficiency or impracticality of separate actions to resolve the controversy.
When appropriate, a putative member’s election to be excluded may be conditioned upon a
prohibition against maintaining a separate action on some or all of the matters in controversy in
the class action or a prohibition against its relying in a separate action upon any judgment rendered or factual finding in favor of the class, and a putative member’s election to be included in
a class may be conditioned upon its bearing a fair share of litigation expenses incurred by the
representative parties.
(B) An order under this subdivision may be conditional, and may be altered or amended before
final judgment.
(2) When ordering that an action be certified as a class action under this rule, the court must direct
that appropriate notice be given to the class under subdivision (d)(1)(C). The notice must concisely and clearly describe the nature of the action; the claims, defenses, or issues with respect to
p.
which the class has been certified; the persons who are members of therclass; any conditions afl Co of class 17
a
fecting exclusion or inclusion in the class; and the potential consequences , 20 membership. In
2
eutic
determining how, and to whom, notice will be given, c court may r 1
rathe mbeconsider the matters listed in
t
. Nu epte notice to all class members, and
v
(b) and (c)(1)(A), the expense and difficulties of providing actual
bert
on S
the nature and extent of anyam consequences that class members may suffer from a failure to
adverse
in L rchived
receive actualcited
notice.
3a
(3) The judgment in an action certified as a class action, whether or not favorable to the class, must
5642
specify oro. 15 those who are members of the class or have elected to be excluded on condiN describeseparate actions.
tions affecting any
(4) When appropriate, an action may be certified as a class action with respect to particular claims,
defenses, or issues, by or against multiple classes or subclasses. Subclasses need not separately
satisfy the requirements of subdivision (a)(1).
(d) Orders in Conduct of Class Actions.
(1) In the conduct of actions to which this rule applies, the court may make appropriate orders that:
(A) determine the course of proceedings or prescribe measures to prevent undue repetition or
complication in the presentation of evidence or argument;
(B) decide a motion under Rule 12 or 56 before the certification determination if the court concludes that the decision will promote the fair and efficient adjudication of the controversy and
will not cause undue delay;
(C) require notice to some or all of the class members or putative members of:
(i) any step in the action, including certification, modification, or decertification of a class, or
refusal to certify a class;
(ii) the proposed extent of the judgment; or
(iii) the members’ opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;
(D) impose conditions on the representative parties, class members, or intervenors;

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(E) require the pleadings be amended to eliminate allegations about representation of absent persons, and that the action proceed accordingly; or
(F) deal with similar procedural matters.
(2) An order under Rule 23 (d)(1) may be combined with an order under Rule 16, and may be altered
or amended.
(e) Dismissal or Compromise. An action in which persons sue or are sued as representatives of a class
must not, before the court’s ruling under subdivision (c)(1), be dismissed, be amended to delete the request for certification as a class action, or be compromised without approval of the court. An action certified as a class action must not be dismissed or compromised without approval of the court, and notice of
a proposed voluntary dismissal or compromise must be given to some or all members of the class in such
manner as the court directs. A proposal to dismiss or compromise an action certified as a class action may
be referred to a magistrate judge or other special master under Rule 53 without regard to the provisions of
Rule 53(b).
(f) Appeals. A court of appeals may permit an appeal from an order granting or denying a request for
class action certification under this rule upon application to it within ten days after entry of the order. An
appeal does not stay proceedings in the district court unless the district judge or the court of appeals so
orders.

COMMITTEE NOTE

Purpose of revision. As initially adopted, Rule 23 defined class actions asp.
“true,” “hybrid,” or
Cor 017
“spurious” according to the abstract nature of the rights involved.l The 1966 revision created a
tica different 2
,
new tripartite classification in subdivision (b), and then ceu
ra establisheder 12 provisions relating
ut
b(b)(3) class actions, the rule
to notice and exclusionary rights based on v. N
that classification. m
e te For
bert who n Sbep
mandated “individual notice to am
all members d o can identified through reasonable effort”
in L
i e
and a right by class members to “opt-out”v the class. For (b)(1) and (b)(2) class actions, howcited 423 arch of
ever, the rule did not -56 terms mandate any notice to class members, and was generally
5 by its
viewed as notNo. 1
permitting any exclusion of class members. This structure has frequently resulted
in time-consuming procedural battles either because the operative facts did not fit neatly into
any one of the three categories, or because more than one category could apply and the selection of the proper classification would have a major impact on whether and how the case should
proceed as a class action.
In the revision, the separate provisions of former subdivisions (b)(1), (b)(2), and (b)(3) are
combined to treat as pertinent factors in deciding “whether a class action is superior to other
available methods for the fair and efficient adjudication of the controversy,” which is added as
subdivision (a) as a prerequisite for any class action. The issue of superiority of class action
resolution is made a critical question, without regard to whether, under the former language,
the case would have been viewed as being brought under (b)(1), (b)(2), or (b)(3). Use of a unitary standard, once the prerequisites of subdivision (a) are satisfied, is the approach taken by
the National Conference of Commissioners on Uniform State Laws and adopted in several
states.
Questions regarding notice and exclusionary rights remain important in class actions—and,
indeed, may be critical to due process. Under the revision, however, these questions are ones
that should be addressed on their own merits, given the needs and circumstances of the case
and without being tied artificially to the particular classification of the class action.

Appendix A

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The revision emphasizes the need for the court, parties, and counsel to focus on the particular claims, defenses, or issues that are appropriate for adjudication in a class action. Too
often, classes have been certified without recognition that separate controversies may exist between plaintiff class members and a defendant which should not be barred under the doctrine of
claim preclusion. Also, the placement in subdivision (c)(4) of the provision permitting class actions for particular issues has tended to obscure the potential benefit of resolving certain claims
and defenses on a class basis while leaving other controversies for resolution in separate actions.
As revised, the rule will afford some greater opportunity for use of class actions in appropriate cases notwithstanding the existence of claims for individual damages and injuries—at least
for some issues, if not for the resolution of the individual damage claims themselves. The revision is not, however, an unqualified license for certification of a class whenever there are numerous injuries arising from a common or similar nucleus of facts. The rule does not attempt to
authorize or establish a system for “fluid recovery” of damages, nor does it attempt to expand or
limit the claims that are subject to federal jurisdiction by or against class members.
The major impact of this revision will be on cases at the margin: most cases that previously
were certified as class actions will be certified under this rule, and most that were not certified
will not be certified under the rule. There will be a limited number of cases, however, where the
certification decision may differ from that under the prior rule, either because of the use of a
unitary standard or the greater flexibility [given] notice and membership in the class.
.
Various non-substantive stylistic changes are made to conform to rp and 7
l Co style 01 conventions
a
adopted by the Committee to simplify the present rules. ceutic
2, 2
ra
ut explicitlymber 1 the proposed class
Subdivision (a). Subdivision (a)(4) is revised to
v. N and able te require that
representatives and their attorneysmbert willing n Sep to undertake the fiduciary responsibe both
o
bilities inherent in representation of achived willingness to accept such responsibilities is a
in La class. The
ed the requestr for class treatment is not made by those who seek to be
t
particular concernci
when 423 a
6
class representatives, 5-5
as when a plaintiff
of a defendant
a
o. 1representatives and requests certificationuntil the class is class. Once orclass
N
is certified, the class
their attorneys will,
decertified they
are otherwise relieved by the court, have an obligation to fairly and adequately represent the
interests of the class, taking no action for their own benefit that would be inconsistent with the
fiduciary responsibilities of the class.
Paragraph (5)—the superiority requirement—is taken from subdivision (b)(3) and becomes a
critical element for all class actions.
The introductory language in subdivision (a) stresses that, in ascertaining whether the five
prerequisites are met, the court and litigants should focus on the matters that are being considered for class action certification. The words “claims, defenses, or issues” are used in a broad
and non-legalistic sense. While there might be some cases in which a class action would be
authorized respecting a specifically defined cause of action, more frequently the court would set
forth a generalized statement of the matters for class action treatment, such as all claims by class
members against the defendant arising from the sale of specified securities during a particular
period of time.
Subdivision (c). Former paragraph (2) of this subdivision contained the provisions for notice
and exclusion in (b)(3) class actions.
Under the revision, the provisions relating to exclusion are made applicable to all class actions, but with flexibility for the court to determine whether, when, and how putative class

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members should be allowed to exclude themselves from the class. The court may also impose
appropriate conditions on such “opt-outs”—or, in some cases, even require that a putative
member “opt-in” in order to be treated as a member of the class.
The potential for class members to exclude themselves from many class actions remains a
primary consideration for the court in determining whether to allow a case to proceed as a class
action, both to assure due process and in recognition of individual preferences. Even in the
most compelling situation for not allowing exclusion—the fact pattern described in subdivision
(b)(1)(A)—a person might nevertheless be allowed to be excluded from the class upon the condition that the person will not maintain any separate action and hence, as a practical matter, be
bound by the outcome of the class action. The opportunity to elect exclusion from a class may
also be useful, for example, in some employment discrimination action in which certain employees otherwise part of the class may, because of their own positions, wish to align themselves
with the employer’s side of the litigation either to assist in the defense of the case or to oppose
the relief sought for the class.
Ordinarily, putative class members electing to be excluded from a plaintiff class will be free
to bring their own individual actions, unhampered by factual findings adverse to the class, while
potentially able, under the doctrine of issue preclusion, to benefit from factual findings favorable
to the class. The revised rule permits the court, as a means to avoid this inequity, to impose a
condition on “opting out” that will preclude an excluded member from relying in a separate
p.
action upon findings favorable to the class.
l Cor 2017
a
Rarely should a court impose an “opt-in” requirementeutic
for membership in a class. There are,
,
rac desirable to 12 the potential due
ut be tember avoid
however, situations in which such a requirement may
v. N Se in
process problems, such as with somebert
defendant classes or p cases where an opt-out right would
m
on
ved
be appropriate but it is impossible or impractical to give meaningful notice of the class action to
in La
edthe class.archidefendant classes it may be appropriate to impose a
cit
all putative members of 423 With
6
condition that requires-5 “opting-in” defendant class members to share in the litigation exo. 15 the party. Such a condition would be rarely needed with plaintiff
N
penses of the representative
classes since typically the claims on behalf of the class, if successful, would result in common
fund or benefit from which litigation expenses of the representative can be charged.
Under the revision, some notice of class certification is required for all types of class actions,
but flexibility is provided respecting the type and extent of notice to be given to the class, consistent with constitutional requirements for due process. Actual notice to all putative class
members should not, for example, be needed when the conditions of subdivision (b)(1) are met
or when, under subdivision (c)(1)(A), membership in the class is limited to those who file an
election to be members of the class. Problems have sometimes been encountered when the class
members’ individual interests, though meriting protection, were quite small when compared
with the cost of providing notice to each member; the revision authorizes such factors to be
taken into account by the court in determining, subject to due process requirements, what notice should be directed.
The revision to subdivision (c)(4) is intended to eliminate the problem when a class action
with several subclasses should be certified, but one or more of the subclasses may not independently satisfy the “numerosity” requirement.
Under former paragraph (4), some issues could be certified for resolution as a class action,
while other matters were not so certified. By adding similar language to other portions of the

Appendix A

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rule, the Committee intends to emphasize the potential utility of this procedure. For example, in
some mass tort situations, it might be appropriate to certify some issues relating to the defendants’ culpability and—if the relevant scientific knowledge is sufficiently well developed—
general causation for class action treatment, while leaving issues relating to specific causation,
damages, and contributory negligence for potential resolution through individual lawsuits
brought by members of the class.
Subdivision (d). The former rule generated uncertainty concerning the appropriate order of
proceeding when a motion addressed to the merits of claims or defenses is submitted prior to a
decision on whether a class should be certified. The revision provides the court with discretion
to address a Rule 12 or Rule 56 motion in advance of a certification decision if this will promote
the fair and efficient adjudication of the controversy. See Manual for Complex Litigation, Second, § 30.11.
Inclusion in the former subdivision (c)(2) of detailed requirements for notice in (b)(3) actions
sometimes placed unnecessary barriers to formation of a class, as well as masked the desirability, if not need, for notice in (b)(1) and (b)(2) actions. Even if not required for due process, some
form of notice to class members should be regarded as desirable in virtually all class actions.
Subdivision (c)(2) requires that notice be given if a class is certified, though under subdivision
(d)(1)(C) the particular form of notice is committed to the sound discretion of the court, keeping
in mind the requirements of due process. Subdivision (d)(1)(C) contemplates that some form of
.
notice may be desirable with respect to many other important rulings;orp
l C subdivision7(d)(1)(C)(i),
1
a
for example, calls the attention of the court and litigants to utic
the possible 2, 20
a a class action 1need for some notice if
ras ce mberor reduces the scope of a
the court declines to certify a class in an actionNut
te
v. filed
previously certified class. In such circumstances,n Sep
bert
m
o particularly if
anotice mayebe needed informingputative class members have
d
become aware of the case,in L
the class members that they
ed some archiv
citthe action as a means for pursuing their rights.
3
can no longer rely on
642
Subdivision (e). 15-5 are sound reasons for requiring judicial approval of proposals to vol. There
No
untarily dismiss, eliminate class allegations, or compromise an action filed or ordered maintained as a class action. The reasons for requiring notice of such a proposal to members of a
putative class are significantly less compelling. Despite the language of the former rule, courts
have recognized the propriety of a judicially-supervised precertification dismissal or compromise without requiring notice to putative class members, e.g., Shelton v. Pargo, 582 F.2d 1298
(4th Cir. 1978). The revision adopts that approach. If circumstances warrant, the court has ample authority to direct notice to some or all putative class members pursuant to the provisions of
subdivision (d). While the provisions of subdivision (e) do not apply if the court denies the request for class certification, there may be cases in which the court will direct under subdivision
(d) that notice of the denial of class certification be given to those who were aware of the case.
Evaluations of proposals to dismiss or settle a class action sometimes involve highly sensitive
issues, particularly should the proposal be ultimately disapproved. For example, the parties
may be required to disclose weaknesses in their own positions, or to provide information
needed to assure that the proposal does not directly or indirectly confer benefits upon class representatives or their counsel inconsistent with the fiduciary obligations owed to members of the
class or otherwise involve conflicts of interest. Accordingly, in some circumstances, investigation of the fairness of these proposals conducted by an independent master can be of great
benefit to the court, particularly since the named parties and their counsel have ceased to be

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adversaries with respect to the proposed dismissal or settlement. The revision clarifies that the
strictures of Rule 53(b) do not preclude the court from appointing under that Rule a special
master to assist the court in evaluating a proposed dismissal or settlement. The master, if not a
Magistrate Judge, would be compensated as provided in Rule 53(a).
Subdivision (f). The certification ruling is often the crucial ruling in a case filed as a class
action. The plaintiff, in order to obtain appellate review of a ruling denying certification, will
have to proceed with the case to final judgment and may have to incur litigation expenses
wholly disproportionate to any individual recovery; and, if the plaintiff ultimately prevails on an
appeal of the certification decision, postponement of the appellate decision raises the specter of
“one way intervention.” Conversely, if class certification is erroneously granted, a defendant
may be forced to settle rather than run the risk of potentially ruinous liability of a class-wide
judgment in order to secure review of the certification decision. The consequences, as well as
the unique public interest in properly certified class actions, justify a special procedure allowing
early review of this critical ruling.
Recognizing the disruption that can be caused by piecemeal reviews, the revision contains
the provisions to minimize the risk of delay and abuse. Review will be available only by leave of
the court of appeals promptly sought, and proceedings in the district court with respect to other
aspects of the case are not stayed by the prosecution of such an appeal unless the district court
or court of appeals so orders. The appellate procedure would be the same as for appeals under
.
28 U.S.C. § 1292(c). The statutory authority for using the rule-making orp to permit an apl C process017
a
peal of interlocutory orders is contained in 28 U.S.C. § 1292(e),c amended in 1992.
uti as r , 2
race mreview12 be rare. Nevert
It is anticipated that orders permitting immediate appellate be should
. Nu epte
ert v on Scompliance with the certification procetheless, the potential for this review should encourage
mb
dures and afford an opportunity for prompt correction of errors.
in La chived
d

cite 423 ar
-56
o. 15

N

Appendix A

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N

p.
l Cor 2017
,
utica
race mber 12
ut
v. N Septe
bert
n
Lam
ed o
ed in 3 archiv
cit
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Appendix B
PROPOSED RULE 23—1995
Rule 23. Class Actions (November 1995 draft).
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf
of all if with respect to the claims, defenses, or issues certified for class action treatment—
(1) the members are so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the representative parties’ positions typify those of the class; and
(4) the representative parties and their attorneys will fairly and adequately discharge the fiduciary duty
to protect the interests of all persons while members of the class until relieved by the court from
that fiduciary duty.
orp.
lasCclass action1if7the prerequi(b) When Class Actions May Be Certified. An action may be certified a
, 20
utica
sites of subdivision (a) are satisfied, and in addition:
race mber 12
ut
(1) the prosecution of separate actions by t v. N individual members of the class would create a
er or againstn Septe
mb
risk of
do
in La rchivewith respect to individual members of the class that
(A) inconsistenttord
adjudications
e varying 3 a
ci incompatible standards of conduct for the party opposing the class, or
would establish 5642
15(B) adjudications with respect to individual members of the class that would as a practical matter
No.
be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) final injunctive or declaratory relief may be appropriate with respect to the class as a whole; or
(3) the court finds (i) that the questions of law or fact common to the certified class predominate over
individual questions included in the class action, (ii) that {the class claims, issues, or defenses are
not insubstantial on the merits,} [alternative:] {the prospect of success on the merits of the class
claims, issues, or defenses is sufficient to justify the costs and burdens imposed by certification},
and (iii) that a class action is superior to other available methods and necessary for the fair and
efficient disposition of the controversy. The matters pertinent to these findings include:
(A) the practical ability of individual class members to pursue their claims without class certification and their interests in maintaining or defending separate actions;
(B) the extent and nature of any related litigation involving class members;
(C) the desirability of concentrating the litigation in the particular forum;
(D) the likely difficulties in managing a class action that will be avoided or significantly reduced if
the controversy is adjudicated by other available means;
(E) the probable success on the merits of the class claims, issues, or defenses;
(F) whether the public interest in—and the private benefits of—the probable relief to individual
class members justify the burdens of the litigation; and

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(G) the opportunity to settle on a class basis claims that could not be litigated on a class basis or
could not be litigated by [or against?] a class as comprehensive as the settlement class; or
(4) the court finds that permissive joinder should be accomplished by allowing putative members to
elect to be included in a class. The matters pertinent to this finding will ordinarily include:
(A) the nature of the controversy and the relief sought;
(B) the extent and nature of the members’ injuries or liability;
(C) potential conflicts of interest among members;
(D) the interest of the party opposing the class in securing a final and consistent resolution of the
matters in controversy; and
(E) the inefficiency or impracticality of separate actions to resolve the controversy; or
(5) the court finds that a class certified under subdivision (b)(2) should be joined with claims for individual damages that are certified as a class action under subdivision (b)(3) or (b)(4).
(c) Determination by Order Whether Class Action to Be Certified; Notice and Membership in Class;
Judgment; Multiple Classes and Subclasses.
(1) When persons sue or are sued as representatives of a class, the court shall determine by order
whether and with respect to what claims, defenses, or issues the action should be certified as a
class action.
(A) An order certifying a class action must describe the class. When a class is certified under subdivision (b)(3), the order must state when and how putative members (i) may elect to be excluded from the class, and (ii) if the class is certified only for settlement, may elect to be exp.
l Cor(e).2017a class is cercluded from any settlement approved by the court under isubdivision
When
t ca
tified under subdivision (b)(4), the order mustrstate when, how, and under what conditions
aceu ber 12,
t
. Nu
putative members may elect to be included in the class; tem
the conditions of inclusion may include
ert va fair share ep
a requirement that class members bear
amb ved on Sof litigation expenses incurred by the repreL
i
sentative parties. in
citedthis423 arch conditional, and may be altered or amended before final
(B) An order under 6 subdivision is
-5
judgment. 15
o.
N
(2)(A) When ordering that an action be certified as a class action under this rule, the court shall direct
that appropriate notice be given to the class. The notice must concisely and clearly describe
the nature of the action, the claims, issues, or defenses with respect to which the class has been
certified, the right to elect to be excluded from a class certified under subdivision (b)(3), the
right to elect to be included in a class certified under subdivision (b)(4), and the potential consequences of class membership. [A defendant may be ordered to advance the expense of notifying a plaintiff class if, under subdivision (b)(3)(E), the court finds a strong probability that the
plaintiff class will win on the merits.]
(i) In any class action certified under subdivision (b)(1) or (2), the court shall direct a means of
notice calculated to reach a sufficient number of class members to provide effective opportunity for challenges to the class certification or representation and for supervision of class
representatives and class counsel by other class members.
(ii) In any class action certified under subdivision (b)(3), the court shall direct to members of
the class the best notice practicable under the circumstances, including individual notice to
all members who can be identified through reasonable effort [, but individual notice may be
limited to a sampling of class members if the cost of individual notice is excessive in relation to the generally small value of individual members’ claims]. The notice shall advise
each member that any member who does not request exclusion may, if the member desires,
enter an appearance through counsel.

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(iii) In any class action certified under subdivision (b)(4), the court shall direct a means of notice calculated to accomplish the purposes of certification.
(3) Whether or not favorable to the class,
(A) The judgment in an action certified as a class action under subdivision (b)(1) or (2) shall include and describe those whom the court finds to be members of the class;
(B) The judgment in an action certified as a class action under subdivision (b)(3) shall include and
specify or describe those to whom the notice provided in subdivision (c)(2)(A)(ii) was directed, and who have not requested exclusion, and whom the court finds to be members of the
class; and
(C) The judgment in an action certified as a class action under subdivision (b)(4) shall include all
those who elected to be included in the class and who were not earlier dismissed from the
class.
(4) An action may be certified as a class action—
(A) with respect to particular claims, defenses, or issues; or
(B) by or against multiple classes or subclasses, which need not satisfy the requirement of subdivision (a)(1).
(d) Orders in Conduct of Class Actions.
(1) Before determining whether to certify a class the court may decide a motion made by any party under Rules 12 or 56 if the court concludes that decision will promote the fair and efficient adjudication of the controversy and will not cause undue delay.
rp.
(2) As a class action progresses, the court may make orders that: cal Co
017
i
(A) determine the course of proceedings or prescribe measures to r 12, undue repetition or
ceut be prevent 2
utra
complication in presenting evidence or argument; ptem
t v. N Se
er
n
(B) require, to protect the Lamb of the class or otherwise for the fair conduct of the action, nomembers
ed o
tice to someiteall members of: chiv
or d in
c
3 ar
(i) refusal to certify a class;
5642
15(ii) any step in the action;
No.
(iii) the proposed extent of the judgment; or
(iv) the members’ opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, to otherwise come into the action, or to
be excluded from or included in the class;
(C) impose conditions on the representative parties, class members, or intervenors;
(D) require that the pleadings be amended to eliminate allegations about representation of absent
persons, and that the action proceed accordingly;
(E) deal with similar procedural matters.
(3) An order under subdivision (d)(2) may be combined with an order under Rule 16, and may be altered or amended
(e) Dismissal and Compromise.
(1) Before a certification determination is made under subdivision (c)(1) in an action in which persons
sue [or are sued] as representatives of a class, court approval is required for any dismissal, compromise, or amendment to delete class issues.
(2) An action certified as a class action shall not be dismissed or compromised without the approval of
the court, and notice of a proposed dismissal or compromise shall be given to all members of the
class in such manner as the court directs.
(3) A proposal to dismiss or compromise an action certified as a class action may be referred to a
magistrate judge or a person specially appointed for an independent investigation and report to

Appendix B

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the court on the fairness of the proposed dismissal or compromise. The expenses of the investigation and report and the fees of a person specially appointed shall be paid by the parties as directed
by the court.
(f) Appeals. A court of appeals may in its discretion permit an appeal from an order of a district court
granting or denying a request for class action certification under this rule if application is made to it
within ten days after entry of the order. An appeal does not stay proceedings in the district court unless
the district judge or the court of appeals so orders.

PARTIAL DRAFT ADVISORY COMMITTEE NOTE
December 12, 1995
Subdivision (b). Subdivision (b) has been amended in several respects. Some of the changes are designed
to redefine the role of class adjudication in ways that sharpen the distinction between the aggregation of
individual claims that would support individual adjudication and the aggregation of individual claims that
would not support individual adjudication. Current attempts to adapt Rule 23 to address the problems
that arise from torts that injure many people are reflected in part in some of these changes, but these attempts have not matured to a point that would support comprehensive rulemaking. When Rule 23 was
substantially revised in 1966, the Advisory Committee Note stated: “A ‘mass accident’ resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that
significant questions, not only of damages but of liability and defenses to liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class
p.
action would degenerate in practice into multiple lawsuits separately tried.” Although it is clear that del Cor not017 clear as to
veloping experience has superseded that suggestion, the lessons utexperience are 2 yet so
of ica
ac but b rule. ,
rnew e relateder 12
support detailed mass tort provisions either in Rule 23 or t
Nu a litigationm
The probability that a claim would support v.
ert individualSepte depends both on the probability of
b
on
any recovery and the probable size am recovery as might be won. One of the most important roles of
L of
in (b)(3)such hivedfacilitate the enforcement of valid claims for small
c been to
ed
certification under subdivision
has
cit
3 ar
amounts. The median recovery figures reported by the Federal Judicial Center study all were far below
5642
15the level that would be required to support individual litigation, unless perhaps in a small claims court.
No. may branch into more troubling settings. The mass tort cases frequently sweep
This vital core, however,
into a class many members whose individual claims would easily support individual litigation, controlled
by the class member. Individual class members may be seriously harmed by the loss of control. Class
certification may be desired by defendants more than most plaintiff class members in such cases, and denial of certification or careful definition of the class may be essential to protect many plaintiffs. As one
example, a defective product may have inflicted small property value losses on millions of consumers,
reflecting a small risk of serious injury, and also have caused serious personal injuries to a relatively small
number of consumers. Class certification may be appropriate as to the property damage claims, but not as
to the personal injury claims.
In another direction, class certification may be sought as to individual claims that would not support
individual litigation because of a dim prospect of prevailing on the merits. Certification in such a case may
impose undue pressure on the defendant to settle. Settlement pressure arises in part from the expense of
defending class litigation. More important, settlement pressure reflects the fact that often there is at least a
small risk of losing against a very weak claim. A claim that might prevail in one of every ten or twenty individual actions gathers compelling force—a substantial settlement value—when the small probability of
defeat is multiplied by the amount of liability to the entire class.
Individual litigation may play quite a different role with respect to class certification. Exploration of
mass tort questions time and again led experienced lawyers to offer the advice that it is better to defer
class litigation until there has been substantial experience with actual trials and decisions in individual

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actions. The need to wait until a class of claims has become “mature” seems to apply peculiarly to claims
that at least involve highly uncertain facts that may come to be better understood over time. New and developing law may make the fact uncertainty even more daunting. A claim that a widely used medical device has caused serious side effects, for example, may not be fully understood for many years after the first
injuries are claimed. Pre-maturity [of] class certification runs the risk of mistaken decision, whether for or
against the class. This risk may be translated into settlement terms that reflect the uncertainty by exacting
far too much from the defendant or according far too little to the plaintiffs.
Item (ii) has been added to the findings required for class certification, and is supplemented by the
addition of new factor (E) to the list of factors considered in making the findings required for certification.
It addresses the concern that class certification may create an artificial and coercive settlement value by
aggregating weak claims. It also recognizes the prospect that certification is likely to increase the stakes
substantially, and thereby increase the costs of the litigation.
{Version 1} Taken to its full extent, this concern might lead to a requirement that the court balance the
probable outcome on the merits against the cost and burdens of class litigation, including the prospect
that settlement may be forced by the small risk of a large class recovery. A balancing test was rejected,
however, because of its ancillary consequences. It would be difficult to resist demands for discovery to
assist in demonstrating the probable outcome. The certification hearing and determination, already
events of major significance, could easily become overpowering events in the course of the litigation.
Findings as to probable outcome would affect settlement terms, and could easily affect the strategic posture of the case for purposes of summary judgment and even trial. Probable success findings could have
collateral effects as well, affecting a party’s standing in the financial community or inflicting other harms.
p.
And a probable success balancing approach must inevitably add considerable delay to 17 certification
l Cor 20 the
,
utica
process.
race avoidber 12associated with balancut totem the costs
The “first look” approach adopted by item (ii).isN
t v calculated p
e
ing the probable outcome and costs mclassrlitigation. n Scourt is required only to find that the class
of be
o The
La
ed the merits.” This phrase is chosen in the belief that
claims, issues, or defensesd innot insubstantial on
“are
iv
cite 423 arch
there is a wide—although curious—gap between the higher possible requirement that the claims be sub-56
stantial and the chosen requirement that they be not insubstantial. The finding is addressed to the
o. 15 the merits,” not to the dollar amount that may be involved. The purpose is to
strength of theN
claims “on
weed out claims that can be shown to be weak by a curtailed procedure that does not require lengthy discovery or other prolonged proceedings. Often this determination will be supported by precertification
motions to dismiss or for summary judgment. Even when it is not possible to resolve the class claims,
issues, or defenses on motion, it may be possible to conclude that the claims, issues, or defenses are too
weak to justify the costs of certification.
{Version 2} These risks can be justified only by a preliminary finding that the prospect of class success
is sufficient to justify them. The prospect of success need not be a probability greater than 0.50. What is
required is that the probability be sufficient in relation to the predictable costs and burdens, including
settlement pressures, entailed by certification. The finding is not an actual determination of the merits,
and pains must be taken to control the procedures used to support the finding. Some measure of controlled discovery may be permitted, but the procedure should be as expeditious and inexpensive as possible. At times it may be wise to integrate the certification procedure with proceedings on precertification
motions to dismiss or for summary judgment. A realistic view must be taken of the burdens of certification—bloated abstract assertions about the crippling costs of class litigation or the coercive settlement
effects of certification deserve little weight. At the end of the process, a balance must be struck between
the apparent strength of the class position on the merits and the adverse consequences of class certification. This balance will always be case-specific, and must depend in large measure on the discretion of the
district judge.

Appendix B

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The prospect-of-success finding is readily made if certification is sought only for purposes of pursuing
settlement, not litigation. If certification of a settlement class is appropriate under the standards discussed
[with factor (G) and subdivision (e)] below, the prospect of success relates to the likelihood of reaching a
settlement that will be approved by the court, and the burdens of certification are merely the burdens of
negotiations that all parties are willing to pursue.
Care must be taken to ensure that subsequent proceedings are not distorted by the preliminary finding
on the prospect of success. If a sufficient prospect is found to justify certification, subsequent pretrial and
trial proceedings should be resolved without reference to the initial finding. The same caution must be
observed in subsequent proceedings on individual claims if certification is denied.
One court’s refusal to certify for want of a sufficient prospect of class success is not binding by way of
res judicata if another would-be representative appears to seek class certification in the same court or
some other court. The refusal to recognize a class defeats preclusion through the theories that bind class
members. Even participation of the same lawyers ordinarily is not sufficient to extend preclusion to a new
party. The first determination is nonetheless entitled to substantial respect, and a significantly stronger
showing may properly be required to escape the precedential effect of the initial refusal to certify.
Item (iii) in the findings required for class certification has been amended by adding the requirement
that a (b)(3) class be necessary for the fair and efficient [adjudication] of the controversy. The requirement that a class be superior to other available methods is retained, and the superiority finding—made
under the familiar factors developed by current law, as well as the new factors (E), (F), and (G)—will be
the first step in making the finding that a class action is necessary. It is no longer sufficient, however, to
find that a class action is in some sense superior to other methods of [adjudicating].“the controversy.” It
rp
also must be found that class certification is necessary. Necessity is cal Co a practical concept. In
7
imeant to be , 201of the superiort
adding the necessity requirement, it also is intended to encourageu
ce careful reconsideration
12
tra
er
ity finding without running the drafting risksv. Nu in findingmb new word to substitute for
entailed
p to some
t together intendedte force careful reappraisal of the fairr
“superior.” Both necessity and superiority are
mbe ed on Se
Laefficiencyvconcerns. Certification ordinarily should not be used to
ness of class adjudication d iwell as
as n
i
cite plaintiffsrch
force into a single class action423 a who would be better served by pursuing individual actions. A
-56
class action is not necessary for them, even if it would be superior in the sense that it consumes fewer litio. 15 fair in the sense that it achieves more uniform treatment of all claimants. Nor
N
gating resources and more
should certification be granted when a weak claim on the merits has practical value, despite individually
significant damages claims, only because certification generates great pressure to settle. In such circumstances, certification may be “necessary” if there is to be any [adjudication] of the claims, but it is neither
superior nor necessary to the fair and efficient [adjudication] of the claims. Class certification, on the
other hand, is both superior and necessary for the fair and efficient [adjudication] of numerous individual
claims that are strong on the merits but small in amount.
Superiority and necessity take on still another dimension when there is a significant risk that the insurance and assets of the defendants may not be sufficient to fully satisfy all claims growing out of a common
course of events. Even though many individual plaintiffs would be better served by racing to secure and
enforce the earlier judgments that exhaust the available assets, fairness may require aggregation in a way
that marshals the assets for equitable distribution. Bankruptcy proceedings may prove a superior alternative, but the certification decision must make a conscious choice about the best method of addressing the
apparent problem.
Yet another problem, presented by some recent class-action settlements, arises from efforts to resolve
future claims that have not yet matured to the point that would permit present individual enforcement. A
toxic agent, for example, may have touched a broad universe of persons. Some have developed present
injuries, most never will develop any injury, and many will develop injuries at some indefinite time in the
future. Class action settlements, much more than adjudications, can be structured in ways that provide for
processing individual claims as actual injuries develop in the future. Class disposition may be the only

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possible means of resolving these “futures” claims. Although “necessary” in this sense, class certification—if it is ever appropriate—must be carefully guarded to protect the rights of class members who do
not even have a realistic way to determine whether they may some day experience actual injury. The
needs to effect meaningful notice and to protect the opportunity to opt out of the class require that any
class be limited to terms that permit an individual claimant to opt out of the class and pursue individual
litigation within a reasonable time after knowing both of the individual injury and the existence of the
class litigation.
Factor (E) has been added to subdivision (b)(3) to complement the addition of new item (ii) and the
addition of the necessity element to item (iii). The role of the probable success of the class claims, issues,
or defenses is discussed with those items.
Factor (F) has been added to subdivision (b)(3) to effect a modest retrenchment in the use of class
actions to aggregate trivial individual claims. It bears on the item (iii) requirement that a class action be
superior to other available methods and necessary for the fair and efficient [adjudication] of the controversy. It permits the court to deny class certification if the public interest in—and the private benefits of—
probable class relief do not justify the burdens of class litigation. This factor is distinct from the evaluation of the probable outcome on the merits called for by item (ii) and factor (E). At the extreme, it would
permit denial of certification even on the assumption that the class position would certainly prevail on the
merits.
Administration of factor (F) requires great sensitivity. Subdivision (b)(3) class actions have become an
important private means for supplementing public enforcement of the law. Legislation often provides
explicit incentives for enforcement by private attorneys-general, including qui tam .provisions, attorneyrp
C that 0
fee recovery, minimum statutory penalties, and treble damages. Class actionso aggregate many small
icalfunction., Class17
2 recoveries serve
eut
individual claims and award “common-fund” attorney fees serve the same r 12
tra of mbe
ufruitsc their wrongs and deterring other potenthe important functions of depriving wrongdoers . N
t vof the Septe
tial wrongdoers. There is little reasonmber that the Committee that proposed the 1966 amendments
to believe
on
anticipated anything like the enforcement roleived
in La ch that Rule 23 assumed, but there is equally little
edbelief. Whatrcounts is the valuehas the enforcement device that courts,reason
cit
to be concerned about that 423 a
of
aided
by active class-action 15-56
lawyers, have forged out of Rule 23(b)(3). In most settings, the value of this device is
No.
clear.
The value of class-action enforcement of public values, however, is not always clear. It cannot be forgotten that Rule 23 does not authorize actions to enforce the public interest on behalf of the public interest. Rule 23 depends on identification of a class of real persons or legal entities, some of whom must appear as actual representative parties. Rule 23 does not explicitly authorize substituted relief that flows to
the public at large, or to court- or party-selected champions of the public interest. Adoption of a provision for “fluid” or “cy pres” class recovery would severely test the limits of the Rules Enabling Act, particularly if used to enforce statutory rights that do not provide for such relief. The persisting justification
of a class action is the controversy between class members and their adversaries, and the final judgment is
entered for or against the class. It is class members who reap the benefits of victory, and are bound by the
res judicata effects of victory or defeat. If there is no prospect of meaningful class relief, an action nominally framed as a class action becomes in fact a naked action for public enforcement maintained by the
class attorneys without statutory authorization and with no support in the original purpose of class litigation. Courts pay the price of administering these class actions. And the burden on the courts is displaced
onto other litigants who present individually important claims that also enforce important public policies.
Class adversaries also pay the price of class enforcement efforts. The cost of defending class litigation
through to victory on the merits can be enormous. This cost, coupled with even a small risk of losing on
the merits, can generate great pressure to settle on terms that do little or nothing to vindicate whatever
public interest may underlie the substantive principles invoked by the class.

Appendix B

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The prospect of significant benefit to class members combines with the public values of enforcing
legal norms to justify the costs, burdens, and coercive effects of class actions that otherwise satisfy Rule 23
requirements. If probable individual relief is so slight as to be essentially trivial or meaningless, however,
the core justification of class enforcement fails. Only public values can justify class certification. Public
values do not always provide sufficient justification. An assessment of public values can properly include
reconsideration of the probable outcome on the merits made for purposes of item (ii) and factor (E). If the
prospect of success on the merits is slight and the value of any individual recovery is insignificant, certification can be denied with little difficulty. But even a strong prospect of success on the merits may not
be sufficient to justify certification. It is no disrespect to the vital social policies embodied in much modern regulatory legislation to recognize that the effort to control highly complex private behavior can outlaw much behavior that involves merely trivial or technical violations. Some “wrongdoing” represents
nothing worse than a wrong guess about the uncertain requirements of ambiguous law, yielding “gains”
that could have been won by slightly different conduct of no greater social value. Disgorgement and deterrence in such circumstances may be unfair, and indeed may thwart important public interests by discouraging desirable behavior in areas of legal indeterminacy.
Factor (G) is added to resolve some, but by no means all, of the questions that have grown up around
the use of “settlement classes.” Factor (G) bears only on (b)(3) classes. Among the many questions that it
does not touch is the question whether it is appropriate to rely on subdivision (b)(1) to certify a mandatory non-opt-out class when present and prospective tort claims are likely to exceed the “limited fund” of
a defendant’s assets and insurance coverage. This possible use of subdivision (b)(1) presents difficult issues that cannot yet be resolved by a new rule provision. Subdivisions (c)( 1)(A)(2) and (e) also bear on
p.
settlement classes.
l Cor 2017
tica
A settlement class may be described as any class that aceu only rfor 2,
purposes of settling
r is certified be 1The certification maythe
t
claims of class members on a class-wide basis, not for u
of their
be
. Nlitigationptem claims.
tv
Se
made before settlement efforts have evenber as settlement efforts proceed, or after a proposed settlebegun,
am ved on
ment has been reached. d in L
e that a class may be certified for purposes of settlement even though the court
rchi
cit
Factor (G) makes it clear 423 a
would not certify the15-56 or might not certify any class, for litigation. At the same time, a (b)(3)
same class,
No.
settlement class continues to be controlled by the prerequisites of subdivision (a) and all of the requirements of subdivision (b)(3). The only difference from certification for litigation purposes is that application of these Rule 23 requirements is affected by the differences between settlement and litigation. Choiceof-law difficulties, for example, may force certification of many subclasses, or even defeat any class certification, if claims are to be litigated. Settlement can be reached, however, on terms that surmount such
difficulties. Many other elements are affected as well. A single court may be able to manage settlement
when litigation would require resort to many courts. And, perhaps most important, settlement may prove
far superior to litigation in devising comprehensive solutions to large-scale problems that defy ready disposition by traditional adversary litigation. Important and even vitally important benefits may be provided for those who, knowing of the class settlement and the opportunity to opt out, prefer to participate
in the class judgment and avoid the costs of individual litigation.
For all the potential benefits, settlement classes also pose special risks. The court’s Rule 23(e) obligation to review and approve a class settlement commonly must surmount the informational difficulties that
arise when the major adversaries join forces as proponents of their settlement agreement. Objectors frequently appear to reduce these difficulties, but it may be difficult for objectors to obtain the information
required for a fully informed challenge. The reassurance provided by official adjudication is missing.
These difficulties may seem especially troubling if the class would not have been certified for litigation,
particularly if the action appears to have been shaped by a settlement agreement worked out even before
the action was filed.

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These competing forces are reconciled by recognizing the legitimacy of settlement classes but increasing the protections afforded to class members. Subdivision (c)(1)(A)(ii) requires that if the class was
certified only for settlement, class members be allowed to opt out of any settlement after the terms of the
settlement are approved by the court. Parties who fear the impact of such opt-outs on a settlement intended to achieve total peace may respond by refusing to settle, or by crafting the settlement so that one
or more parties may withdraw from the settlement after the opt-out period. The opportunity to opt out of
the settlement creates special problems when the class includes “futures” claimants who do not yet know
of the injuries that will one day bring them into the class. As to such claimants, the right to opt out created
by subdivision (c)(1)(A)(ii) must be held open until the injury has matured and for a reasonable period
after actual notice of the class settlement.
The right to opt out of a settlement class is meaningless unless there is actual notice. Actual notice in
turn means more than exposure to some official pronouncement, even if it is directly addressed to an individual class member by name. The notice must be actually received and also must be cast in a form that
conveys meaningful information to a person of ordinary understanding. A class member is bound by the
judgment in a settlement-class action only after receiving actual notice and a reasonable opportunity to
opt out of the judgment.
Although notice and the right to opt out provide the central means of protecting settlement class
members, the court must take particular care in applying some of Rule 23’s requirements. Definition of
the class must be approached with care, lest the attractions of settlement lead too easily to an over-broad
definition. Particular care should be taken to ensure that there are no disabling conflicts of interests
among people who are urged to form a single class. If the case presents facts or law . are unsettled and
rp that
that are likely to be litigated in individual actions, it may be better to postponeo class certification until
l C any 2017
tica a 1 settlement and effective
,
experience with individual actions yields sufficient information eu
rac to supporterwise2
ut
b
review of the settlement.
v. N
ptem
bert
When a settlement class seems premature, the same n Se be served in part by forming an opt-in
goals may
m
o
class under subdivision (b)(4). An opt-in class ved only those whose actual participation guarantees
in La chi
ed choice.3 armajorwill bind indeed, is that the opt-in class provides clear
cit
actual notice and voluntary 42 The
difference,
assurance of the same goals sought by requiring actual notice and a right to opt out of a settlement-class
5-56
.1
N virtues of opt-in classes are discussed separately with subdivision (b)(4).
judgment. Other o
Subdivision (f). This permissive interlocutory appeal provision is adopted under the power conferred
by 28 U.S.C. § 1292(e). Appeal from an order granting or denying class certification is permitted in the
sole discretion of the court of appeals. No other type of Rule 23 order is covered by this provision. It is
designed on the model of § 1292(b), relying in many ways on the jurisprudence that has developed
around § 1292(b) to reduce the potential costs of interlocutory appeals. The procedures that apply to the
request for court of appeals permission to appeal under § 1292(b) should apply to a request for permission to appeal under Rule 23(f). At the same time, subdivision (f) departs from § 1292(b) in two significant
ways. It does not require that the district court certify the certification ruling for appeal, although the district court often can assist the parties and court of appeals by offering advice on the desirability of appeal.
And it does not include the potentially limiting requirements of § 1292(b) that the district court order
“involve[] a controlling question of law as to which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.”
Only a modest expansion of the opportunity for permissive interlocutory appeal is intended. Permission to appeal should be granted with great restraint. The Federal Judicial Center study supports the view
that many suits with class action allegations present familiar and almost routine issues that are no more
worthy of immediate appeal than many other interlocutory rulings. Yet several concerns justify some expansion of present opportunities to appeal. An order denying certification may confront the plaintiff with
a situation in which the only sure path to appellate review is by proceeding to final judgment on the mer-

Appendix B

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its of an individual claim that, standing alone, is far smaller than the costs of litigation. [The prior draft
added that if a plaintiff class is certified after judgment for the representative plaintiffs, the result may be
“one-way” intervention. That does not seem much of a concern to me—if indeed there is a valid claim on
the merits, why should we be concerned that the late-certified class members have not had to take a
sporting chance on losing their valid claims?] An order granting certification, on the other hand, may
force a defendant to settle rather than incur the costs of defending a class action and run the risk of potentially ruinous liability. These concerns can be met at low cost by establishing in the court of appeals a
discretionary power to grant interlocutory review in cases that show appeal-worthy certification issues.
The expansion of appeal opportunities effected by subdivision (f) is indeed modest. Court of appeals
discretion is as broad as under § 1292(b). Permission to appeal may be granted or denied on the basis of
any consideration that the court of appeals finds persuasive. Permission is most likely to be granted when
the certification decision turns on a novel or unsettled question of law. Such questions are most likely to
arise during the early years of experience with new class-action provisions as they may be adopted into
Rule 23 or enacted by legislation. Permission almost always will be denied when the certification decision
turns on case-specific matters of fact and district court discretion.
The district court, having worked through the certification decision, often will be able to provide cogent advice on the factors that bear on the decision whether to permit appeal. This advice can be particularly valuable if the certification decision is tentative. Even as to a firm certification decision, a statement
of reasons bearing on the probable benefits and costs of immediate appeal can help focus the court of
appeals decision, and may persuade the disappointed party that an attempt to appeal would be fruitless.
The 10-day period for seeking permission to appeal is designed to reduce the risk that attempted aprp.
peals will disrupt continuing proceedings. It is expected that the courts Co
l of appeals will 7 quickly in
tica 12, 201act
making the preliminary determination whether to permit appeal. u
ce Permission to appeal does not stay trial
tra
er
court proceedings. A stay should be sought first from u trial court. If the trial court refuses a stay, its
te b
t v. N the Septhe m of appeals.
r
action and any explanation of its views should weigh heavily with
court
mbe
on

La
ed
ed in 3 archiv
cit
5642
. 15-

No

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Appendix C
Figures and Tables
The following figures and tables are generally derived from data collected in the field study described in Appendix D. One exception is Table 19, which is based on data derived from the
Federal Judicial Center’s district court time study and a review of relevant pleadings in class
actions in the time study. See discussion infra Appendix D.
Another exception relates to the data supporting Figures 7–10 and Tables 16–17. The data
for the class action cases in those figures and tables come from the class action field study that is
the subject of this report. The comparison data for nonclass cases come from the Federal Judicial Center’s Integrated Data Base (IDB), which is a compilation of records and case status reports routinely sent by clerks of court to the Administrative Office of therUnited States Courts.
p.
l Co 20Consortium for
17
The Center makes the IDB available to the public through utica
ethe Inter-University Ann Arbor,
cUniversity of 12,
Political and Social Research, which is located utra
at the
ber Michigan,
v. N Se
tICPSR # 8429.ptem
Michigan 48109-1248. The IDB number is
ber
As discussed in the Introduction and ined on D, we present these figures and data to
Lam iv Appendix
in
describe the class action activity inarch
cited 423 four district courts in cases terminated within the study period. We present the data and figures as a systematic examination of class action activity in those
-56
o. 15
four courts in cases terminated between July 1, 1992, and June 30, 1994. We caution the reader
N
not to read too much into the data and especially not to draw inferences and conclusions about
the universe of class activity. Data on subsets of the data elements, such as nature-of-suit categories or types of class actions, are particularly susceptible to misinterpretation because of their
small numbers. For example, differences among districts in such cases may simply represent
chance fluctuations or little more than that.

111

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Figure 1: Median Net Settlement Per Class Member in Settled, Certified Class
Actions
$6,000

Median Net Settlement

$5,331

75th Percentile
Maximum

$5,000

Net Settlement

$4,000
$3,341
$3,000

$2,620

$2,000

$1,988

$1,744

$1,000
$393

$1,505
$715

$645

$528

$315

$497

$0

p. N.D. Cal . (n=22)
l Cor 2017
District Court
,
utica
race mber 12
ut
t v. N Se te
berClass Memberp Settled, Certified Securities
Figure 2: Median Net Settlement Per ed on
in
Lam
ed in 3 archiv
Class Actions cit
5642
. 15No
$6,000
E.D. Pa. (n=16)

S.D. Fla. (n=9)

N.D. Ill. (n=15)

Median Net Settlement
75th Percentile

$5,000

Net Settlement

$4,000

$3,000
$1,934

$2,000

$1,000
$352

$645

$852

$763
$447

$368

$337

$0
E.D. Pa. (n=12)

S.D. Fla. (n=8)

N.D. Ill. (n=8)

N.D. Cal. (n=16)

District Court

112

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Figure 3: Median Net Settlement Per Class Member in Settled, Certified
Nonsecurities Class Actions
$6,000

Median Net Settlement
75th Percentile

$5,000

$4,561

Net Settlement

$4,000

$3,000
$2,213
$2,000

$1,472
$1,097
$811

$1,000
$416

$275

E.D. Pa. (n=4)

S.D. Fla. (n=1)

$275

$0
N.D. Ill. (n=7)

N.D. Cal. (n=6)

p.
l Cor 2017
,
utica
race mber 12
ut
.N
te
Figure 4: Mean and Median Timesert vFiling of Complaint to Multidistrict
b from on Sep
am ved
Litigation Consolidationn L
i
i
cited 423 arch
-56
8.0
o. 15
N
Mean
7.1
District Court

7.0

Median
5.9

Number of Months

6.0
5.0
4.0

4.2

4.4

4.7
4.1

4.0

4.0
3.0
2.0
1.0
0.0
E.D. Pa. (n=5)

S.D. Fla. (n=2)

N.D. Ill. (n=4)

N.D. Cal. (n=3)

District Court

Appendix C

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Figure 5: Mean and Median Number of Cases Within Each Consolidation by the
District Courts

Number of Cases Within Each Consolidation

6.0
5.0

5.7

Mean
Median

4.7

4.0

4.0

3.5

3.0

2.7
2.0

2.0

2.5

2.0

1.0
0.0
E.D. Pa. (n=23)*

S.D. Fla. (n=10)

N.D. Ill. (n=10)

N.D. Cal . (n=17)

District Court

p.
l Cor 2017
,
utica
race mber 12
ut
Figure 6: Percentage of Related CasestNot N
v. Consolidated with Similar Litigation
epte
ber
Pending in Federal and Stateam
Courts
on S
in L
ived
cited 423 arch
-56
100%
Pending
o. 15 Federal Litigation
N
Pending Sta te Litigation
90%
Percentage of Nonconsolidated Cases

*Missing value = 1.

80%
70%
60%
50%
40%

23%
(23 of
102 cases)

30%
20%
10%

11%
(13 of
117 cases)

3%
(4 of
117 cases)

6%
(4 of
72 cases)

1%
(1 of
72 cases)

5%
3%
(6 of
(3 of
116 cases) 116 cases)

0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

0%
(0 of
102 cases)
N.D. Cal .

District Court

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Figure 7: Settlement Rates for Nonprisoner Class Actions Compared to Nonprisoner
Civil Actions in Cases Terminated Between July 1, 1992, and June 30, 1994
100%

Class

90%

Nonclass

80%

66%
(5,047 of
7,603 cases)

Settlement Rates

70%
60%

53%
(57 of
108 cases)

59%
(64 of
108 cases)

57%
(33 of
58 cases)

56%
(4,615 of
8,264 cases)

64%
(60 of
94 cases)

53%
(2,850 of
5,404 cases)

41%
(2,112 of
5,174 cases)

50%
40%
30%
20%
10%
0%

N.D. Cal .
orp. 17
0
ical C
ceut ber 12, 2
ra
t
Source: Nonclass: Federal Judicial Center integrated database of Administrative Office data; Class: Federal Judicial
m
. Nu
ert v on S D). te
Center class action project database (see first paragraph, Appendixep The two data sets refer to civil cases termib
m
nated between July 1, 1992, and in La 1994. Theved
June 30,
Administrative Office data on settlement for the study cases difed set of cases. Thehi
fered from our data forcit same
the
arc differences were not consistently in the same direction. Overall, the
Administrative Office data showed42 settlements in the four districts compared to 214 in the Federal Judicial Center
6 3
5-5and190
1
database. The settlement rates
numbers shown by the Administrative Office data for class cases were 64% (69),
No.
41% (24), 47% (51), and 49% (46), respectively.
E.D. Pa.

S.D. Fla.

N. D. Ill.

District Court

Appendix C

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Figure 8: Settlement Rates for Securities Class Actions Compared to Securities Civil
Actions
100%

Class

90%
80%
Settlement Rates

70%
60%

77%
(27 of
35 cases)

Nonclass
66%
(127 of
60%
(18 of 191 cases)
30 cases)

50%

67%
(10 of
15 cases)

61%
(14 of
23 cases)
35%
(66 of
187 cases)

40%

47%
(69 of
148 cases)

48%
(96 of
198 cases)

30%
20%
10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

p.
l Cor 2017
a
eutic er 12,
Source: Nonclass: Federal Judicial Center integrated database trac
of Administrative Office data; Class: Federal Judicial
u
Center class action project database (see first paragraph, N
v. Appendix D). emb
ert Administrative eptThe two data sets refer to civil cases termiS
nated between July 1, 1992, and June 30, mb The
1994.
d on Office data on settlement differed from our data
in La rc not consistently in the same direction. Overall, the Administrative
for the same set of cases. The differences were hive
cited 423 in
Office data showed fifty-seven settlements a the four districts compared to sixty-nine in the Federal Judicial Center
database. The settlement rates56 by the Administrative Office data for securities class actions were 80% (twenty15- shown
four), 27% (four), 52% (twelve), and 49% (seventeen), respectively.
No.

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Figure 9: Median Time from Filing to Disposition of Nonprisoner Class Actions
Compared to Nonprisoner Civil Actions
25.0

Class

Months from Filing to Termination

Nonclass
20.0

15.0

15.9
(n=108)

15.1
(n=108)

15.7
(n=94)

13.0
(n=58)
8.4
(n=5,174)

10.0

5.0

6.7
(n=5,404)

5.3
(n=8,264)

5.0
(n=7,603)

0.0
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

.
Corp Class: Federal
lOffice data, 2017 Judicial
Source: Nonclass: Federal Judicial Center integrated database of Administrative
,
utica
Center class action project database (see first paragraph, Appendix D).
race mber 12
ut
v. N Septe
bert
n
Figure 10: Median Timein LaFiling to Disposition of Securities Class Actions
from m
ed o
ed Civil3 archiv
Compared to Securities
Actions
cit
5642
15Class
23.7
No.
22.8
25.0
(n=35)
Nonclass
Months from Filing to Termination

(n=30)

17.5
16.9
(n=15) (n=187)

20.0

19.9
(n=23)

15.0

18.7
(n=198)

12.2
(n=148)

10.0
(n=191)
10.0

5.0

0.0
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal.

District Court

Source: Nonclass: Federal Judicial Center integrated database of Administrative Office data, Class: Federal Judicial
Center class action project database (see first paragraph, Appendix D).

Appendix C

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Figure 11: Rule 23(b) Certifications
10 %
0

Rule 23(b)(1)(A)
Rule 23(b)(1)(B)
Rule 23(b)(2)
Rule 23(b)(3)

Percentage of Rule 23(b) Certifications

90%
80%

84.6%
(11 of
14 cases)

76.7%
(23 of
30 cases)

70%
60%
43.8%
(21 of
48 cases)

50%

56.5%
(26 of
46 cases)

50.0%
(24 of
48 cases)

40%

20%
10%

22.9%
(11 of
46 cases)

23.1%
(3 of
14 cases)

30%

6.2%
(3 of
48 cases)

0.0%
(0 of
48 cases)

8.7%
(4 of
46 cases)

0.0%
0.0%
(0 of
(0 of
13 cases) 13 cases)

10.9%
(5 of
46 cases)

16.7%
(5 of
30 cases)
6.7%
(2 of
0.0% 30 cases)
(0 of
30 cases)

0%
E.D. Pa.

S.D. Fla.

N.D. I ll.

N.D . Cal .

District Court

p.
l Cor 2017
Note: Data exclude combinations of types.
,
utica
race mber 12
ut
v. N S
Figure 12: Cases with Intradistrict Consolidation epte
bert
n
Lam
ed o
ed in 3 archiv
cit
100%
5642
. 1590%
No
Percentage of Cases

80%
70%
60%
50%
40%
30%
20%

20.5%
(24 of 117 cases)

13.8%
(10 of 72 cases)

10%

8.6%
(10 of 116 cases)

16.6%
(17 of 102 cases)

0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

118

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Figure 13: Cases Referring to a Related Federal or State Case
100%
90%

Percentage of Cases

80%
70%
60%
50%
40%
22.5%
(23 of 102 cases)

30%
20%

13.6%
(16 of 117 cases)

10%

6.9%
(5 of 72 cases)

7.7%
(9 of 116 cases)

S.D. Fla.

N.D. Ill.

0%
E.D. Pa.

N.D. Cal .

District Court

p.

or
Figure 14: Cases with Multidistrict Litigation Consolidationlor Intradistrict
ica C 2, 2017
t
Consolidation or Related Case
aceu
r1
utr
be
t v. N Septem
er
mb
on
in La rchived
ed
cit
3a
5642
o. 15

100%
90%

Percentage of Cases

80%
70%

N

60%
50%
40%

32.4%
(38 of 117 cases)

30%

39.2%
(40 of 102 cases)
22.2%
(16 of 72 cases)

19.8%
(23 of 116 cases)

S.D. Fla.

N.D. Ill.

20%
10%
0%
E.D. Pa.

N.D. Cal .

District Court

Appendix C

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Figure 15: Certified Class Actions in Which Class Representatives Were Changed
100%
90%

Percentage of Cases

80%
70%
60%
50%
33%
(11 of 33 cases)

40%
30%

21%
(10 of 47 cases)

20%

21%
(10 of 48 cases)
8%
(1 of 13 cases)

10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

Percentage of Cases with Awards

p.
l Cor Award to Class
Figure 16: Certified, Settled, Approved Class Actionsutica
with Separate, 2017
ce
r 12
Representatives
tra
. Nu eptembe
ert v
amb ved on S
in L
i
100%
cited 423 arch
90%
6
15-5
80% No.
70%
60%

46%
(6 of 13 cases)

50%
40%
30%

40%
(16 of 40 cases)

26%
(11 of 43 cases)

37%
(11 of 30 cases)

20%
10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

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Figure 17: Median Amount of Separate Awards to Class Representatives in Certified,
Settled, Approved Class Actions
$30,000

Median Amount of Award

$25,000
$20,000

$17,000

$15,000
$10,000

$12,000
$7,500

$7,500

$5,000
$0
E.D. Pa. (n=11)

S.D. Fla. (n=6)

N.D. Ill. (n=16)

N.D. Cal. (n=11)

District Court

Amount Per Individual Award

orp.
l CClass 2017
Figure 18: Median and 75th Percentile of Award pereutica
Individual 2, Representatives
r1
in Certified, Settled, Approved Class Actionsutrac
mbe
.N
epte
ert v
amb ved on S
in L
i
$30,000
$28,571
cited 423 arch
Median
5-56
$25,000 No. 1
75th Percentile
$20,000
$15,000
$10,000
$5,000

$7,500
2,500

$3,375

$6,250

$7,560

$2,964

$2,583

$0
E.D. Pa. (n=11)

S.D. Fla. (n=6)

N.D. Ill. (n=16)

N.D. Cal . (n=11)

District Court

Appendix C

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Figure 19: Time from Filing of Complaint to Filing of Motion for Class Certification
18
16.3

Median
75th Percentile

16

Number of Months

14
12
10

8.2
8

7.0

6.5

6
4.3
4

4.2

4.1

3.1

2
0
E.D. Pa. (n=96)

S.D. Fla. (n=37)

N.D. Ill. (n=78)

N.D. Cal. (n=60)

p.
l Cor 2017
utica r 12,
race mbeJudicial Ruling on
Figure 20: Time from Filing Motion forv. NuCertification to
Class t
epte
ert
Certification Issue
amb ved on S
in L
i
cited 423 arch
18
-56
15.8
o. 15
Median
N
16
District Court

75th Percentile

Number of Months

14
12

10.2

10
7.6

8
6
4

8.5

8.4

4.1

3.8
2.8

2
0
E.D. Pa. (n=76)

S.D. Fla. (n=25)

N.D. Ill. (n=77)

N.D. Cal . (n=47)

District Court

122

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Figure 21: Length of Time from Filing of Complaint to Settlement in Settled Cases
43.8

45.0

41.7

Median
40.0

39.4

75th Percentile

Number of Months

35.0
28.5

30.0

25.9

25.4
25.0
20.0

18.4

16.7

15.0
10.0
5.0
0.0
E.D. Pa. (n=54)

S.D. Fla. (n=23)

N.D. Ill. (n=52)

N.D. Cal . (n=49)

District Court

p.
l Cor 2017
,
utica
race mber 12
Figure 22: Length of Time from Ruling on Nut
Certification Motion to Settlement in
v.
Settled Cases
epte
bert
am ved on S
in L
i
cited 423 arch
45.0
Median56
38.0
40.0
o. 15
N 75th Percentile
33.6

Number of Months

35.0
30.0
25.0

22.6

20.0
13.9

15.0
10.0

14.2

13.7

12.2

5.5

5.0
0.0
E.D. Pa. (n=36)

S.D. Fla. (n=10)

N.D. Ill. (n=37)

N.D. Cal. (n=23)

District Court

Appendix C

123

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Figure 23: Length of Time from Filing of Complaint to Termination
45.0

Median
75th Percentile

40.0

34.1

Number of Months

35.0
30.0

26.2

34.1

26.1

25.0
20.0
15.0

14.8

15.4

14.7
10.5

10.0
5.0
0.0
E.D. Pa. (n=117)

S.D. Fla. (n=71)*

N.D. Ill. (n=116)

N.D. Cal . (n=102)

District Court

p.
l Cor 2017
utica r ,
racein Relation12Rulings on Class
Nut
Figure 24: Timing of Rulings on Motions. to Dismiss tembe to
ert v on Sep
Certification
mb
in La rchived
cited 423 a
90%
-56
82%
Before
81%
o. 15
N 78%
80%
Percentage of Rulings on Motions to Dismiss Before and
After Rulings on Class Certification

* Missing value = 1.

After

70%
61%
60%
50%
39%

40%
30%

22%

20%

19%

18%

10%
0%
E.D. Pa. (n=40)

S.D. Fla. (n=17)

N.D. Ill. (n=46)

N.D. Cal . (n=32)

District Court

124

Class Actions

Case: 15-56423, 09/15/2017, ID: 10582263, DktEntry: 37-2, Page 133 of 208

Percentage of Rulings on Summary Judgment Before and After
Rulings on Class Certification

Figure 25: Timing of Rulings on Motions for Summary Judgment in Relation to
Rulings on Class Certification
90%

Before
After

78%

80%
69%

70%

67%
59%

60%
50%
41%
40%

33%

31%
30%

22%

20%
10%
0%
E.D. Pa. (n=26)

S.D. Fla. (n=9)

N.D. Ill. (n=27)

N.D. Cal . (n=15)

p.
l Cor 2017
,
utica
race mber 12
ut
v. N Septe
bert for Summary Judgment
Figure 26: Type of Party Filing Motion d on
Lam
e
ed in 3 archiv
cit
30
Plaintiff
5642
. 15- Defendant
26
o25
N
District Court

Number of Filings

25

Other (e.g., both Plaintiff
and Defendant)

20

18

15
10

8

8
5

5

4

2

1

0

0
E.D. Pa.

S.D. Fla.

N.D. Ill.

2

2

N.D. Cal.

District Court

Appendix C

125

Case: 15-56423, 09/15/2017, ID: 10582263, DktEntry: 37-2, Page 134 of 208

Figure 27: Rulings on Motions for Summary Judgment
100%
90%

85%
(35 of
41 motions)

Percentage of Rulings

80%

84%
(31 of
37 motions)
63%
(22 of
34 motions)

60%
(13 of
21 motions)

70%
60%
50%
40%
30%
20%
10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

Percentage Granting Dismissal or Summary Judgment

Figure 28: Percentage of Rulings Granting Dismissal or Summary Judgment
p.

or
ical C 2, 2017
eut
utrac tember 1
v. N Sep
bert
n
Lam
ed o
ed in 3 archiv 59%
cit
57%
(69 of
42
(58 of
5-56
116 cases)
102 cases)
o. 1
42%
42%

100%
90%
80%
70%
60%

N

(49 of
117 cases)

(30 of
72 cases)

E.D. Pa.

50%

S.D. Fla.

40%
30%
20%
10%
0%
N.D. Ill.

N.D. Cal.

District Court

126

Class Actions

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Figure 29: Percentage of Oppositions to Motions to Certify and Sua Sponte Orders
Regarding Certification
100%
90%
Percentage of Oppositions

80%
70%

54%
(21 of
39 cases)

52%
(45 of
86 cases)

E.D. Pa.

60%

52%
(50 of
98 cases)

S.D. Fla.

N.D. Ill.

50%
40%

40%
(25 of
63 cases)

30%
20%
10%
0%
N.D. Cal .

District Court

p.
l Cor 2017
,
utica
race mber 12
ut
Figure 30: Percentage of Submissionstof Opposition Memoranda to Certification
v. N Septe
ber
Motions and Sua Sponte Orders Regarding on
Certification
Lam
ed
ed in 3 archiv
cit
90%
5642 (19 of
100%
84%
82%
. 1521 cases)
(21 of
No
(37 of
90%
25 cases)
Percentage of Submissions of Opposition Memoranda

Note: Data include only those cases where either a motion to certify was filed or a sua sponte order issued.

80%
70%

45 cases)

70%
(35 of
50 cases)

60%
50%
40%
30%
20%
10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

Appendix C

127

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Figure 31: Supporting and Opposition Brief Lengths in Cases with Opposition to
Motion for Certification or Sua Sponte Orders Regarding Certification
80.0
70.0
61
(n=35)

59.5
(n=36)

Number of Pages

60.0

76
(n=21)

75th Percentile–Opposition
Median–Opposition
75th Percentile–Support
Median–Support
49
(n=21)

50.0
40.0

32.5
(n=36)
26
(n=35)

30.0

29
(n=19)

27
(n=37)

25
(n=21)

25
(n=38)
18
(n=37)

18
(n=19)

20.0

40
(n=21)

39
(n=38)

35
(n=19)

12
(n=19)

10.0
0.0

p. N.D. Cal .
l Cor 2017
,
utica
race mber 12
ut
v. N Septe
bert in Certified and Noncertified Cases with
Figure 32: Length of Judicial am
L Opinions ed on
hiv
Certification Disputes in
ed
cit
3 arc
5642
Certified Cases–Median
. 1525
No
Certified Cases–75th Percentile
E.D. Pa.

S.D. Fla.

N.D. Ill.

District Court

24
(n=6)

21
(n=12)

Noncertified Cases–Median
20

19
(n=8;
missing
values=5)

Noncertified Cases–75th Percentile

Number of Pages

17
(n=6)

15

14
(n=19;
missing
values=6)

13
(n=26;
missing
values=2)

13
(n=18;
missing
values=7)

12
(n=12)

10

5

4
(n=19;
missing
values=6)

2
(n=18;
missing
values=7)

1.5
(n=6;
missing
values=9)

3
(n=6;
missing
values=9)

4
(n=26;
missing
values=2)

5
(n=13;
missing
values=4)

7
(n=13;
missing
values=4)
3.5
(n=8;
missing
values=5)

0
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

128

Class Actions

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Number of Cases Including Type of Argument

Figure 33: Arguments Raised in Cases Opposing Motion for Class Certification or
Sua Sponte Order Regarding Certification
89

90

87
74

80
70
60

49

50
40
30
20
10
0
Representativeness

Typicality

Numerosity

Commonality

Arguments Raised

Number of Motions

p.
l Cor 2017
Figure 34: Number of Party-Filed Motions For or Against Class Certification
,
utica
race mber 12
ut
.N
te
ert v on
bE.D. Pa. (n=107)Sep
90 88
am ved
in L
i
S.D.
80
cited 423 arch Fla. (n=37)
N.D. Ill. (n=82)
-56
66
70
o. 15
N
N.D. Cal. (n=73)
60

48

50
40

34

30
20

15
9

10
0

0
Plaintiff to
Certify a
Plaintiff's
Class

1 0 1

Plaintiff to
Certify a
Defendant's
Class

0 1 0

0

Defendant
to Certify a
Defendant's
Class

0 0

1 0

Defendant
to Certify a
Plaintiff's
Class

1
Other

12

12

10
0 0

Not
Applicable

Type of Party and Motion for Certification

Appendix C

129

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Figure 35: Certified Subclasses and Nature of Suit
Civil Rights
40%
(4 of 10 certified
subclasses)

ERISA
10%
(1 of 10 certified
subclasses)

Securities
50%
(5 of 10 certified
subclasses)

Percentage of Cases with Notices Sent

p.
l Cor 2017
,
utica
race mber 12
Figure 36: Class Notice Issued as a Percentage tof Certified Class Actions
u
v. N Septe
bert
Lam100% ed on
ed in 3 a(13 of iv
rch
cit
89%
42 13 cases)
6
(31 of
100%
15 5
. 78% 35 cases)
o
76%
90% N (38 of
(37 of
80%

49 cases)

49 cases)

70%
60%
50%
40%
30%
20%
10%
0%
E.D. Pa. (n=53)

S.D. Fla. (n=13)

N.D. Ill. (n=51)

N.D. Cal . (n=35)

District Court

Note: Data are missing for some cases in two districts.

130

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Figure 37: Time from Ruling on Certification to Notice of Certification for Cases in
Which Notice Was Issued
45

41.7

Median
75th Percentile

40

Number of Months

35
30
25
20

16.5

16.3

15
8.3

10

6.7

3.8

5

3.3

2.2

0
E.D. Pa. (n=20 of 53
certified class actions)

S.D. Fla. (n=3 of 13
certified class actions)

N.D. Ill. (n=12 of 51
certified class actions)

N.D. Cal. (n=14 of 35
certified class actions)

p.
l Cor 2017
,
utica
race mber 12
ut
Figure 38: Median Number of Recipients.of Individuale
v N Sept Notice in Certified (b)(3)
bert
Class Actions
n
Lam
ed o
ed in 3 archiv
cit
15,4775642
16,000
. 15No
District Court

Median Number of Recipients

14,000
12,000
10,000

8,000

6,937

6,000
4,119
4,000

2,997

2,000
0
E.D. Pa. (n=17 of 21)

S.D. Fla. (n=9 of 11)

N.D. Ill. (n=18 of 24)

N.D. Cal. (n=18 of 22)

District Court

Appendix C

131

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Figure 39: Percentage of Contests of the Notice Process in Cases with Notice

Percentage of Contests in Cases with Notice

100%
90%
80%
70%
60%
50%
40%

24%
(9 of
38 notices)

30%
20%

15%
(2 of
13 notices)

13%
(5 of
38 notices)

S.D. Fla.

N.D. Ill.

10%

6%
(2 of
31 notices)

0%
E.D. Pa.

N.D. Cal .

District Court

.

Figure 40: Percentage of Settled Class Actions with Noticeal Corp
Where Notice Includes
017
the Gross Amount of the Settlement
utic
ce
12, 2

utra
ber
t v. N Septem 90%
ber
(27 of
83%
Lam of ived on
30 cases)
ed in 312(10 ch
ar
cit
71%
42 cases)
(15 of -56
64%
5
21 1
(16 of
o. cases)

100%
90%

Percentage of Cases

80%
70%

N

25 cases)

60%
50%
40%
30%
20%
10%
0%
E.D. Pa. (n=33)

S.D. Fla. (n=13)

N.D. Ill. (n=35)

N.D. Cal . (n=33)

District Court

Note: The balance of the cases for each court had missing or inapplicable data.

132

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Figure 41: Percentage of Settled Class Actions with Notice Where Notice Included
Amount or Percentage of Attorneys’ Fees
Amount of Attorneys' Fees

100%

Percentage of Attorneys' Fees
90%
74%
(17 of
23 cases)

80%

Percentage of Cases

70%
(19 of
27 cases)

67%
67%
(8 of
(8 of
12 cases) 12 cases)

70%

40%

61%
(17 of
28 cases)

56%
(14 of
25 cases)

60%
50%

83%
(25 of
30 cases)

Either or Both of Above

39%
(9 of
23 cases)

36%
(8 of
22 cases)

30%
(7 of
23 cases)

40%
(12 of
30 cases)

30%
10%
(1 of
10 cases)

20%
10%
0%

.
pN.D. Cal . (n=33)
l Cor 2017
utica
2,
race data. ber 1cases, notices included both
ut
Note: The balance of the cases for each court had missingN inapplicable emIn some
t v. or Sept
the percentage and amount of attorneys’ fees. ber
n
Lam
ed o
ed in 3 archiv
cit
Figure 42: Percentage of Settled Class Actions with Notice Where Notice Included
5642
Amounts for Administration or Other Expenses
. 15No
E.D. Pa. (n=33)

S.D. Fla. (n=13)

N.D. Ill. (n=35)

District Court

100%
90%

Amount for Administration
Amount of Other Expenses

Percentage of Cases

80%
70%
60%
50%
40%
30%
20%

17%
(4 of
23 cases)

13%
(3 of
23 cases)

18%
(2 of
11 cases)

30%
(3 of
10 cases)
10%
(2 of
21 cases)

10%

19%
(4 of
21 cases)

25%
(7 of
18%
(5 of 28 cases)
28 cases)

0%
E.D. Pa. (n=33)

S.D. Fla. (n=13)

N.D. Ill. (n=35)

N.D. Cal . (n=33)

District Court

Note: The balance of the cases had missing or inapplicable data.

Appendix C

133

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Figure 43: Percentage of Certified 23(b)(3) Class Actions with One or More Opt Outs
100%

Percentage of Cases with Opt Outs

90%
80%
70%
60%
50%
40%
21%
(5 of
24 cases)

30%

19%
(5 of
26 cases)

11%
(1 of
11 cases)

20%

9%
(2 of
23 cases)

10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

Figure 44: Percentage of Certified 23(b)(3) Civil Rights, ERISA, Securities, and
p.
Other Class Actions with One or More Opt Outs
l Cor
17
a

, 20
utic
race mber 12
t
. Nu
ert v on Septe
ambhts
in LCivil Rigchived
cited 42ERISAr
3a
56 Securities
. 15-

100%
(2 of
2 cases)

100%
(1 of
1 case)

Percentage of Cases with Opt Outs

100%
90%
80%
70%
60%

No

Other

50%
(1 of
2 cases)

50%

38%
(3 of
8 cases)

40%
30%
20%
10%

13%
(2 of
15 cases)
0%
(0 of
5 cases)

0%
0%
(0 of
(0 of
0 cases) 0 cases)

15%
(2 of
13 cases)

11%
(1 of
9 cases)

0%
(0 of
1 cases)

0%
0%
(0 of
(0 of
3 cases) 2 cases)

0%
(0 of
2 cases)

6%
(1 of
17 cases)

0%
(0 of
3 cases)

0%

E.D. Pa. (n=24)

S.D. Fla . (n=11)

N.D. Ill. (n=26)

N.D. Cal. (n=23)

District Court

134

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Figure 45: Percentage of Certified, Settled 23(b)(3) Class Actions with One or More
Opt Outs of a Proposed Settlement
100%

Percentage of Cases with Opt Outs

90%
80%
58%
(11 of
19 cases)

70%
60%

36%
(4 of
11 cases)

50%
40%

43%
(9 of
21 cases)

36%
(8 of
22 cases)

30%
20%
10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

p.
l Cor 2017
,
utica
race mber 12
ut
Figure 46: Percentage of Certified, ert v. N
Settled 23(b)(3) Class Actions with One or More
epte
Opt Outs from a Proposed Lamb byd on S Suit
Settlement e Nature of
in
iv
cited 423 arch
-56
o. 15
Civil Rights
N
100%
District Court

100%
(2 of
2 cases)

100%
(2 of
2 cases)

100%
(3 of
3 cases)

ERISA
Securities

Percentage of Cases with Opt Outs

90%

Other

80%
70%
60%
50%

50%
(1 of
2 cases)

57%
(4 of
7 cases)
44%
(4 of
9 cases)

42%
(5 of
12 cases)

44%
(4 of
9 cases)

40%
(6 of
15 cases)

40%

33%
(1 of
3 cases)

30%
20%
10%

0%
0%
(0 of
(0 of
0 cases) 1 case)

0%
(0 of
1 case)

0%
0%
(0 of
(0 of
4 cases) 2 cases)

0%
(0 of
1 case)

0%
E.D. Pa. (n=19)

S.D. Fla. (n=11)

N.D. Ill. (n=22)

N.D. Cal. (n=21)

District Court

Appendix C

135

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Figure 47: Percentage of Certified (b)(3) Class Actions with One or More Opt Outs
from Certification or Settlement
100%

Percentage of Cases with Opt Outs

90%
80%
70%
60%
50%

50%
(12 of
24 cases)

45%
(5 of
11 cases)

42%
(11 of
26 cases)

48%
(11 of
23 cases)

40%
30%
20%
10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

p.
l Cor 2017
utica r ,
race Certified,12 Rule 23(b)(3)
e
Figure 48: Net Settlement Value Per Class Nut
v. Member of mb Settled
ert Opt OutsSepte
Classes With or Without One or More
mb
on
in La rchived
ed
974
cit
3a
(n=9)
1,000
5642
5o. 1Opt Outs
900 N
No Opt Outs

800

693
(n=8)

Trimmed Mean*

700

575
(n=6)

600
423
(n=6)

500

385
(n=8)

400
300

353
(n=9)

242
(n=11)

200

74
(n=4)

100
0
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court
* The trimmed mean statistic is, like the mean (average) and the median (midpoint), a measure of the central tendency

of a set of data. In this case, to reduce the distortion of extreme values, a 10% trimmed mean was used, that is, a mean
of the data after eliminating 10% of the data from the top and the bottom.

136

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Figure 49: Percentage of Certified, Settled Class Actions Using Claims Procedures to
Distribute Settlements

Percentage Using Claims Procedures (Cases)

100%
90%

80%
(24)

77%
(10)

80%
70%
60%
50%

45%
(18)

42%
(18)

40%
30%
20%
10%
0%
E.D. Pa. (n=43)

S.D. Fla. (n=13)

N.D. Ill. (n=40)

N.D. Cal . (n=30)

p.
l Cor 2017
,
utica
race mber 12
ut
Figure 50: Percentage of Certified, ert v. N SepClass Actions Using Claims
Settled Securities te
Procedures to Distribute Settlements ed on
amb v
in L
i
cited 423 arch
100%
(20)
5-56
100%
1
89%
o. 86%
N
(8)
Percentage Using Claims Procedures (Cases)

District Court

90%

(12)

80%
(8)

80%
70%
60%
50%
40%
30%
20%
10%
0%
E.D. Pa. (n=14)

S.D. Fla. (n=9)

N.D. Ill. (n=10)

N.D. Cal . (n=20)

District Court

Appendix C

137

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Figure 51: Percentage of Cases with Attempts of Putative Class Members to Intervene
and Percentage of Cases with Interventions Allowed
Percentage of Attempts to Intervene and Interventions Allowed

100%
90%
80%

Attempts to Intervene
Intervention Allowed

70%
60%
50%
40%
30%
20%
10%

11%
(13 attempts)

9%
(10 attempts)

6%
(7 allowed)
0%

3%
(4 allowed)

5%
(5 attempts)

2%
(2 allowed)

0%
E.D . Pa. (n=117)

S. . Fla. (n=72)
D

N. D. Ill. (n=116)

N.D. Cal. (n=102)

District Court

p.
l Cor 2017
,
utica
race mber 12
ut
v. N Septe
Figure 52: Success Rates for VariousrBases for Attempted Intervention by Putative
be t
n
Lam
Class Members
ed o
ed in 3 archiv
cit
5642
. 15100%
No
90%
80%

Percentage Granted

60%

59%
(10 of
17 attempts)

Rule 24(a)
(of right)

70%

57%
(8 of
14 attempts)

Rule 24(b)
(permissive)

67%
(2 of
3 attempts)
40%
(2 of
5 attempts)

50%
40%
30%
20%
10%
0%

Rule
23(d)(2)
(class
members)

Other
(Rules 15,
19, 20, 21)

Federal Rule of Civil Procedure
Note: Some motions cited more than one source.

138

Class Actions

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Figure 53: Percentage of Settlement Approval Hearings with Participation by Class
Representatives or Nonrepresentative Class Members or Objectors

Percentage of Participation in Settlement Hearings

100%

Partic ipation by Class Representative

90%

Partic ipation by Nonrepresentative C lass
Members or Objectors

80%
70%
60%
50%

46%
(16 of 35
settlement
hearings)

40%
30%
20%

14%
(5 of 35
settlement
hearings)

21%
(3 of 14
settlement
hearings)

10%

28%
(9 of 32
settlement
hearings)
7%
(1 of 14
settlement
hearings)

11%
11%
(4 of 36
(4 of 36
settlement settlement
hearings) hearings)

9%
(3 of 32
settlement
hearings)

0%
E.D . Pa. (n=35)

S.D . Fla. (n=14)

N. D. Ill .(n=36)

N. D. Cal . (n=32)

p.
District Courts
l Cor 2017
,
utica
race mber 12
ut
v. N
pte
bert
Figure 54: Percentage of Certified Class ActionsSe a Ruling on a Motion to
am ved on with
Dismiss
in L
i
cited 423 arch
6
15-5
100% No.
81%
(13 of
16 cases)

Percentage of Cases with Rulings

90%
80%
70%
60%
50%

51%
(18 of
35 cases)

47%
(17 of
36 cases)
33%
(2 of
6 cases)

40%
30%
20%
10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

Note: Cases certified for settlement purposes are not included.

Appendix C

139

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Figure 55: Rulings on Motions for Summary Judgment in Certified Class Actions
100%

Percentage of Cases with Rulings

90%
67%
(4 of
6 cases)

80%
70%
60%

43%
(15 of
35 cases)

40%

31%
(11 of
36 cases)

44%
(7 of
16 cases)

N.D. Ill.

50%

N.D. Cal .

30%
20%
10%
0%
E.D. Pa.

S.D. Fla.
District Court

p.
l Cor 2017
,
utica
race mber 12
ut with tTrial Date Set
Figure 56: Percentage of Certified Class Actions ep e
v. N S
bert
n
Lam
ed o
ed in 3 archiv
cit
100%
2
564Trial Set
. 1590%
No
Trial Begun
Percentage of Cases with Trial Set or Begun

Note: Cases certified for settlement purposes only are not included.

80%
70%

56%
(9 of
16 cases)

60%
50%
40%
30%
20%

33%
(2 of
6 cases)

28%
(10 of
36 cases)

17%
(6 of
35 cases)

14%
(5 of
36 cases)
0%
(0 of
6 cases)

10%
0%
E.D. Pa.

S.D. Fla.

6%
(2 of
35 cases)

N.D. Ill.

13%
(2 of
16 cases)

N.D. Cal .

District Court

Note: Cases certified for settlement purposes only are not included.

140

Class Actions

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Percentage of Cases with a Ruling or Trial Date Set

Figure 57: Percentage of Certified Class Actions with a Ruling on a Motion to Dismiss
or a Motion for Summary Judgment or a Trial Date Set
100%
90%
80%

72%
(26 of
36 cases)

94%
(15 of
16 cases)

83%
(5 of
6 cases)

77%
(27 of
35 cases)

70%
60%
50%
40%
30%
20%
10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

p.
l Cor 2017
,
utica
race mber 12
ut with taeRuling on a Motion to
.N
Figure 58: Percentage of Certified Class Actions ep
ert v on S
bJudgment or Both
Dismiss or a Motion for Summary
Lam
ed
ed in 3 archiv
cit
5642
100%
83%
. 1581%
No
(5 of
(13 of
90%
Note: Cases certified for settlement purposes only are not included.

Percentage of Cases with a Ruling

6 motions)

80%
70%

74%
(26 of
35 motions)

16 motions)

S.D. Fla.

N.D. Ill.

N.D. Cal .

67%
(24 of
36 motions)

60%
50%
40%
30%
20%
10%
0%
E.D. Pa.

District Court

Note: Cases certified for settlement purposes only are not included.

Appendix C

141

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Figure 59: Percentage of Settlement Class Actions in Which Notice of Settlement
Was Communicated to the Class

Percentage of Cases with Notices Sent

100%
90%

100%
(7 of
7 notices sent)
81%
(13 of
16 notices sent)

100%
(16 of
16 notices sent)
80%
(12 of
15 notices sent)

80%
70%
60%
50%
40%
30%
20%
10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

Percentage of Cases with Preliminary Findings Entered

p.
l Cor 2017
,
utica
raceWhich er 12
Figure 60: Percentage of Settlement Class Actions in
ut
b Preliminary Findings
v. N Septem
Were Entered
bert
Lam100% ed on
ed in 3 a(7chiv
r of 7
cit
94%
(15 of 16
5642 settlement class
actions)
51
settlement class
100%
No.
actions)
80%
(12 of 15
settlement class
actions)

90%
80%
70%
60%
50%

50%
(8 of 16
settlement class
actions)

40%
30%
20%
10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

142

Class Actions

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Percentage of Cases with Hearings Held

Figure 61: Percentage of Settlement Class Actions in Which Hearings Were Held
Prior to Approval of Settlement

100%
90%
80%

75%
(12 of 16
settlement class
actions)

100%
(7 of 7
settlement class
actions)

80%
(12 of 15
settlement class
actions)

100%
(16 of 16
settlement class
actions)

70%
60%
50%
40%
30%
20%
10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal .

District Court

p.
l Cor 2017
,
utica
race mber 12
ut
v. N Septe
bert
n
Lam
ed o
ed in 3 archiv
cit
5642
. 15o

Figure 62: Percentage of Cases with a Trial Date Set
100%
90%

Percentage of Cases

80%
70%

N

60%
50%
40%

20%

18%
(13 of
72 cases)

E.D. Pa.

30%

18%
(21 of
117 cases)

S.D. Fla.

10%

9%
(11 of
116 cases)

24%
(24 of
102 cases)

0%
N.D. Ill.

N.D. Cal.

District Court

Appendix C

143

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Months from First Complaint to First Entry of Trial Date

Figure 63: Mean and Median Time from First Complaint to First Entry of Trial Date
for Cases with a Trial Date Entered
50

Mean
Median

45
40

42
38

35
30
25

22

22

19

18

20
15

10

9

10
5
0
E.D. Pa. (n=18)

S.D. Fla. (n=12)

N.D. Ill. (n=10)

N.D. Cal. (n=24)

p.
l Cor 2017
,
utica
race mber 12
utEntry of Trial Date for Cases with
Figure 64: Time from First Complaint to.First epte
v N S
bert
Trial Date Entered
n
Lam
ed o
ed in 3 archiv
cit
42
Pa.
5-56
. 1E.D. Fla. (n=18)
No S.D. (n=12)
District Court

100%

Percentage of Cases with Trial Date Entered

90%

N.D. Ill. (n=10)
N.D. C al. (n=24)

80%
70%
60%
50%

37%

40%
30%

33%

33%

33%

28%

30%

21%

21%
17%

20%

30%

28%

17%

20%

17%

10%

10%

10%

5%
0%

0%

4%
0%

5%
0%

0%

0%

Within 6
months

Between 6
months–1
yea r

Within
1–2 years

Between
2–4 years

Within
4–6 years

Between
6–7 ye ars

Time

144

Class Actions

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Months from First Complaint to Scheduled Trial Date

Figure 65: Time from First Complaint to Scheduled Trial Date—Mean and Median
for Cases with Trial Date Scheduled
50

47

Mean

45

Median

39

40

36

36

35
30

27

25
20

20

20
16

15
10
5
0
E.D. Pa. (n=21)

S.D. Fla. (n=13)

N.D. Ill. (n=11)

N.D. Cal. (n=24)

p.
l Cor 2017
utica r 12,
raceTrial Date for Cases with Trial
Figure 66: Time from First Complaint to.Scheduled tembe
Nut
ert v on Sep
Date Scheduled
mb
in La rchived
cited 423 a
100%
E.D. Pa. 56
- (n=21)
. 1Fla.
oS.D. 5 (n=13)
90%
N
Percentage of Cases with Trial Date Scheduled

District Court

N.D. Ill. (n=11)
N.D. Cal. (n=24)

80%
70%

62%

60%
50%
37% 38%

37%

40%

33%

33%
27%

30%

29%
18%

20%

15%
10%

10%

10%

15%
9%

9%

5%
0%

0%

0%

8%

0%

5%
0%

0%

0%

Within 6
months

Between 6
months–1
year

With in
1–2 years

Between
2–4 years

Within
4–6 years

Between
6–8.1
years

Time

Appendix C

145

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Figure 67: Fee-Recovery Rate Intervals in Certified Cases with Court-Approved
Settlements Providing Net Monetary Distribution to Class

Number of Cases

10

9

8

7
6

6

6
5

4

4
2

E.D. Pa. (n=18)
S.D. Fla. (n=9)
N.D. Ill. (n=18)
N.D. Cal. (n=23)

12

12

5
4

2
1 1

2

1

1

1*

1*

0
81%–90% 91%–100%
orp. 17
0
ical C
ceut ber 12, 2
ra
t
. Nu
em
Note: Figures 67–70 exclude fourteen cases wheretthe only monetarypt
er v on Se distribution was to class representatives and
b
m
twenty-four cases where the only monetary distribution was for attorneys’ fees or administrative expenses. These
in La rchived
thirty-eight cases (sixteented in two districts and two and four cases in the other two districts) are shown in Table
cases
a
ci
45. Figures 67–70 also exclude three 23 (one in each of three districts) where there was no record of a fee request
564 cases a class settlement providing net monetary distribution to the class. “Net
or a fee award but where the15 court approved
No.
monetary distribution” is net of attorneys’ fees and administrative expenses. “Fee-recovery rate” is fee awards as a
1%–10%

11%–20%

21%–30%

31%–40%

41%–50%

51%–60%

61%–70%

71%–80%

Fee-Recovery Rate Intervals

percentage of gross monetary settlement. “Fee award” equals the total amount of fees awarded to plaintiffs’ counsel,
excluding sanctions and out-of-pocket expenses. “Gross monetary settlement” includes the following where applicable: payments or quantifiable benefits to class members, separate payments to class representatives, donations to
charities or public interest groups, attorneys’ fees and expenses, and administrative costs of the settlement.
* In the case with the 63% rate, a certified class of approximately 2,000 stockholders received net cash distributions of

$1.8 million for damages related to stock sales. For the 71% rate, the settlement included a relatively small amount of
interest a county prothonotary agreed to pay class members related to interpleaded funds in its trust account in the
past six years. In addition, the prothonotary agreed to place interpleaded funds in separate interest-bearing accounts
in the future.

146

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Fee-Recovery Rate: Fee Award as Percentage of Gross
Monetary Settlement

Figure 68: Mean and Median Fee-Recovery Rates in Certified Cases with CourtApproved Settlements Providing Net Monetary Distribution to Class
100%

Mean Rate

90%

Median Rate

80%
70%
60%
50%
40%
30%

30%

28%

24%

27%

30%

30%

27%

29%

20%
10%
0%
E.D. Pa. (n=18)

S.D. Fla. (n=9)

N.D. Ill. (n=18)

N.D. Cal . (n=23)

District Court

rp.
l Coto class017
a
Note: Figures 67–70 exclude fourteen cases where the only monetary distribution was , 2 representatives and
eutic e administrative expenses. These
twenty-four cases where the only monetary distribution was for ac
fees
r attorneys’mbor r 12
t
thirty-eight cases (sixteen cases in two districts andttwo.and four casesptthe other two districts) are shown in Table
v Nu Se in e
ereach of three districts) where there was no record of a fee request
45. Figures 67–70 also exclude three cases (one in
mb
d on
in La r class settlement providing net monetary distribution to the class. “Net
or a fee award but where the court approved a chive
ed attorneys’a and administrative expenses. “Fee-recovery rate” is fee awards as a
cit
monetary distribution” is net of
423 fees
percentage of gross monetary 56
5- settlement. “Fee award” equals the total amount of fees awarded to plaintiffs’ counsel,
1
excluding sanctions and out-of-pocket expenses. “Gross monetary settlement” includes the following where applicaNo.
ble: payments or quantifiable benefits to class members, separate payments to class representatives, donations to
charities or public interest groups, attorneys’ fees and expenses, and administrative costs of the settlement.

Appendix C

147

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Figure 69: Mean and Median Fee Awards in Certified Cases with Court-Approved
Settlements Providing Net Monetary Distribution to Class
$3,000, 000

Mean Award
Median Award

$2,500, 000

$2,536,670*

Fee Award

$2,000, 000
$1,500,000

$1,411,635

$1,500, 000
$1,108,857

$959,901

$1,000, 000
$667,500

$732,537

$660,000

$500,000
$0
E.D. Pa. (n=18)

S.D. Fla. (n=9)

N.D. Ill. (n=18)

N.D. Cal . (n=23)

p.
l Cor 2017
utica
Note: Figures 67–70 exclude fourteen cases where the only monetary distribution was to ,
race mbor r 12class representatives and
twenty-four cases where the only monetary distribution Nut attorneys’ fees e administrative expenses. These
v. was forcases inte
thirty-eight cases (sixteen cases in two districts erttwo and four Sep the other two districts) are shown in Table
and
mb
on
45. Figures 67–70 also exclude three La (one in each of three districts) where there was no record of a fee request
in cases rchived providing net monetary distribution to the class. “Net
d
ecourt approved a class settlement
or a fee award but whereithe
ct
3a
monetary distribution” is net5642
of attorneys’ fees and administrative expenses. “Fee-recovery rate” is fee awards as a
percentage of grosso. 15 settlement. “Fee award” equals the total amount of fees awarded to plaintiffs’ counsel,
N monetary
excluding sanctions and out-of-pocket expenses. “Gross monetary settlement” includes the following where applicaDistrict Court

ble: payments or quantifiable benefits to class members, separate payments to class representatives, donations to
charities or public interest groups, attorneys’ fees and expenses, and administrative costs of the settlement.
* Includes one case with fee award of $13,875,000.

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Class Actions

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Figure 70: Mean and Median Gross Monetary Settlements in Certified Cases with
Court-Approved Settlements Providing Net Monetary Distribution to Class
$12,000, 000

Mean Amount
Median Amount

Gross Monetary Settlements

$10,000, 000

$10,044,540*

$8,000, 000

$6,000, 000

$4,000, 000

$2,000, 000

$5,100,000

$4,698, 171

$4,568, 868
$3,194,042
$1,978,723

$3,050,000
$2,450,000

$0

E.D. Pa. (n=18)

S.D. Fla. (n=9)

N.D. Ill. (n=18)

N.D. Cal. (n=23)

p.
l Cor 2017
utica
Note: Figures 67–70 exclude fourteen cases where the only monetary distribution was to ,
race mbor r 12class representatives and
t
e
twenty-four cases where the only monetary distribution Nu attorneys’ fees administrative expenses. These
v. was forcases inte
thirty-eight cases (sixteen cases in two districts erttwo and four Sep the other two districts) are shown in Table
and
mb
on
45. Figures 67–70 also exclude three La (one in iveof three districts) where there was no record of a fee request
in cases rcheach d
d
ecourt approved a class settlement providing net monetary distribution to the class. “Net
or a fee award but whereithe
ct
3a
monetary distribution” is net5642
of attorneys’ fees and administrative expenses. “Fee-recovery rate” is fee awards as a
5percentage of grosso. 1
N monetary settlement. “Fee award” equals the total amount of fees awarded to plaintiffs’ counsel,
excluding sanctions and out-of-pocket expenses. “Gross monetary settlement” includes the following where applicaDistrict Court

ble: payments or quantifiable benefits to class members, separate payments to class representatives, donations to
charities or public interest groups, attorneys’ fees and expenses, and administrative costs of the settlement.
* Includes one case with gross settlement of $73,570,000.

Appendix C

149

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Figure 71: Fee Calculation Method in Certified Cases with Court-Approved
Settlements
E.D. Pa.
S.D. Fla.

Consent of Parties
23%
(8 of 34 cases)

Consent of Parties
with Objection
3%
(1 of 34 cases)

Consent of Parties
9%
(1 of 11 cases)

Lodestar*
23%
(8 of 34 cases)

Unknown
21%
(7 of 34 cases)

Both Lodestar &
Percent of
Recovery*
6%
(2 of 34 cases)

Percent of Recovery
21%
(7 of 34 cases)

Unknown with
Objection
3%
(1 of 34 cases)

Unknown
18%
(2 of 11 cases)

Percent of Recovery
73%
(8 of 11 cases)

N.D. Ill.
N.D. Cal.
Consent of
Parties
14%
(5 of 34 cases)

Consent of Parties
with Objection
7%
(2 of 28 cases)

Consent of Parties
with Objection
6%
(2 of 34 cases)

Consent of
Parties
11%
(3 of 28 cases)

p.
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. 15o

Unknown
24%
(8 of 34 cases)

Both Lodestar &
Percent of Recovery
3%
(1 of 34 cases)

Lodestar**
18%
(6 of 34 cases)

Lodestar
11%
(3 of 28 cases)

Competitive Bid
3%
(1 of 28 cases)

Unknown with
Objection
3%
(1 of 34 cases)

Percent of Recovery
32%
(11 of 34 cases)

Percent of Recovery
68%
(19 of 28 cases)

N

* Includes one of two cases where the court enhanced the lodestar calculation by a 2.5 multiplier.

**Includes at least two cases (6% of thirty-four cases) where the court reduced the lodestar calculation by more than

25%.

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Figure 72: Mean and Median Fee-Recovery Rates in Certified Cases Using Percentage
of Recovery Method and Providing Net Monetary Distribution to Class
100%

Mean

90%

Median

Fee as Percentage of Recovery

80%
70%
60%
50%
40%
30%

28%

27%

26%

27%

31%

30%

29%

30%

20%
10%
0%
E.D. Pa. (n=7)

S.D. Fla. (n=7)

N.D. Ill. (n=10)

N.D. Cal. (n=18)

District Court

p.
l Cor 2017
,
utica
race mber 12
ut
v. N Septe
bert
n
Lam
ed o
ed in 3 archiv
cit
5642
. 15o

Note: “Net monetary distribution” is net of attorneys’ fees and administrative expenses.

N

Appendix C

151

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Figure 73: Fee Calculation Method in Certified Cases with Court-Approved
Settlements Providing Net Monetary Distribution to Class
E.D. Pa.
Both Lodestar
& Percent of
Recovery
6%
(1 of 18 cases)

S.D. Fla.
Consent of
Parties
11%
(1 of 9 cases)

Unknown
22%
(4 of 18 cases)

Unknown
11%
(1 of 9 cases)

Lodestar*
33%
(6 of 18 cases)
Percent of
Recovery
39%
(7 of 18 cases)

Percent of
Recovery
78%
(7 of 9 cases)

N. D. Ill.

N.D. Cal.
Consent of Parties
16%
(3 of 18 cases)

Competitive
Bid
4%
Consent of Parties
(1 of 23 cases)
9%
(2 of 23 cases)

p.
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Unknown
16%
(3 of 18 cases)

Both Lodestar &
Percent of
Recovery
6%
(1 of 18 cases)

Lodestar
6%
(1 of 18 cases)

Lodestar
9%
(2 of 23 cases)

N

Percent of
Recovery
56%
(10 of 18 cases)

Percent of
Recovery
78%
(18 of 23 cases)

Note: “Net monetary distribution” is net of attorneys’ fees and administrative expenses.
* Includes Masnik v. Bolar Pharmaceutical Co., Inc., No. 90-4086 (E.D. Pa. filed June 15, 1990), where a 2.5 en-

hancer was applied to the lodestar amount.

152

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Figure 74: Fee Calculation Method in Certified Cases with Court-Approved
Settlements Providing No Net Monetary Distribution to Class
S.D. Fla.

E.D. Pa.

Unknown
50%
(1 of 2 cases)

Consent of Parties
56%
(9 of 16 cases)
Lodestar*
19%
(3 of 16 cases)

Percent of
Recovery
50%
(1 of 2 cases)

Unknown
25%
(4 of 16 cases)

N.D. Ill.
N.D. Cal.

Consent of
Parties
25%
(4 of 16 cases)

Consent of Parties
60%
(3 of 5 cases)

p.
l Cor 2017
,
utica
race mber 12
ut
v. N Septe
bert
n
Lam
ed o
ed in 3 archiv
cit
642
Note: “Net monetary.distribution” is net of attorneys’ fees and administrative expenses. This figure includes cases
15-5
No
where the only monetary distribution was to class representatives, to class counsel for fees, or for administrative exLodestar
31%
(5 of 16 cases)

Unknown
38%
(6 of 16 cases)

Percent of
Recovery
6%
(1 of 16 cases)

Lodestar
20%
(1 of 5 cases)

Percent of
Recovery
20%
(1 of 5 cases)

penses.
* Includes General Motors Pick-Up Truck Liability Litigation (55 F.3d 768 (3d Cir.), cert. denied, 116 S. Ct. 88
(1988)), where district court used both lodestar and percentage methods, including a 2.5 multiplier applied to the
lodestar amount. The award was vacated and remanded on appeal.

Appendix C

153

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Figure 75: Objections to Attorneys’ Fees by Fee Calculation Method in Certified
Cases with Court Approved Settlements
100%

Lodestar
Percentage of Recovery
Consent of Parties
Unknow n

Percentage of Cases with Objection

90%
80%
70%
60%
50%

38%
(3 of
8 awards)

40%

20%

25%
(2 of
8 awards)

25%*
(2 of
8 awards)

30%

40%
(2 of
5 awards)

33%*
(4 of
12 awards)

25%**
(5 of
20 awards)
11%
(1 of
9 awards)

11%
(1 of
9 awards)
0%
0%
(0 of
(0 of
1 award) 2 awards)

0%
(0 of
9 awards)

10%

0%
(0 of
6 awards)

0%
(0 of
7 awards)

0%
(0 of
3 awards)

0%

E.D. Pa. (n=34)

S.D. Fla. (n=11)

N.D. Ill. (n=34)

N.D . Cal . (n=28)

District Court

* Percentage of recovery cases include one case with both lodestar and percentage methods.

p.
l Cor 2017
,
utica
Figure 76: Percentage of Cases with at Least One Appeal (All Class Actions: Certified
race mber 12
ut
v. N Septe
Cases and Noncertified Cases)
bert
n
Lam
ed o
ed in 3 archiv
cit
100%
E.D. 2
564Pa.
. 15- S.D. Fla.
90% No
Percentage of Cases with at Least One Appeal

**Includes fee objections in the one case involving competitive bidding by prospective lead class counsel.

N.D. Ill.
N.D. Cal.

80%
70%
60%
50%
40%
30%
20%

34%
(39 of
116 cases)

26%
(31 of
117 cases)
15%
(11 of
72 cases)

23%
(23 of
102 cases)

29%
(15 of
51 cases)
19%
(10 of
53 cases)

15%
(2 of
13 cases)

37%
(24 of
65 cases)

33%
(21 of
64 cases)

14%
(5 of
35 cases)

27%
(18 of
67 cases)

15%
(9 of
59 cases)

10%
0%

All Class Actions

154

Certified Cases

Noncertified Cases

Class Actions

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Figure 77: Cases with Only One Appeal and Cases with Multiple Appeals
60

E.D. Pa.
S.D. Fla.

50

N.D. Ill.
N.D. Cal.

Number of Cases

40

30

27

26

20
15
10

10

10
3

5
1

1

2

3

1

0
0
rp. 0
l CoCases with017 More
Cases with One Appeal
Cases with Two Appeals
Cases with Threeca
, 2 Four or
uti Appeals
race mber 12 Appeals
t
. Nu ep e
ert11vcases, 12 appeals; tN.D. Ill. = 39 cases, 53 decided appeals, 3
Note: E.D. Pa. = 31 cases, 36 appeals; amb =
o S
L S.D. Fla. pending. n
idecided appeals, i2ved
pending; N.D. Cal. = 23 cases, 32 n
cited 423 arch
-56
o. 15
N
0

Appendix C

0

155

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Figure 78: Disposition on Appeal
100%

E.D. Pa.
S.D. Fla.
N.D. Ill.
N.D. Cal.

90%

Percentage of Decided Appeals

80%
70%
60%

55%
(20 of
36 appeals)

47%
(25 of
53 appeals)

50%
40%

44%
(14 of
32 appeals)

33%
(4 of
12 appeals)

28%
(10 of
36 appeals)

30%
17%
(2 of
12 appeals)

20%
3%
(1 of
36 appeals)

10%

16%
(5 of
32 appeals)

17%
15%
14%
(2 of
(8 of
(5* of
12 appeals)
53 appeals)
36 appeals)

2%
(1 of
53 appeals)

36%
34%
33%
(19** of
(11 of
(4 of
53 appeals)
32 appeals)
12 appeals)

6%
(2 of
32 appeals)

0%

Affirmed

Affirmed in Part/Reversed in
Part

Rever sed/Vacated/Remanded

Appeal Dismisse d or
Withdrawn

Appeal Outcomes

p.
l Cor 2017
utica
2,
race Pick-Up er 1case (55 F.3d 768 (3d Cir.),
* Includes the Third Circuit vacating the settlement in the General Motors
ut
b Truck
v. N Septem
cert. denied, 116 S. Ct. 88 (1995)).
bert
n
Lam
**Includes one case where party opposing the class fileddwrit of mandamus which the court of appeals denied.
e o
ed in 3 archiv a
cit
5642
. 15No

Note: E.D. Pa. = 31 cases, 36 appeals; S.D. Fla. = 11 cases, 12 appeals; N.D. Ill. = 39 cases, 53 decided appeals, 3
pending; N.D. Cal. = 23 cases, 32 decided appeals, 2 pending.

156

Class Actions

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Figure 79: Disposition on Appeals Brought by Plaintiffs

E.D. Pa.
S.D. Fla.
N.D. Ill.
N.D. Cal.

100%

Percentage of Appeals by Plaintiffs

90%
80%
70%
60%

58%
(22 of
38 appeals)

57%
(16 of
28 appeals)

50%
40%

33%
(3 of
9 appeals)

41%
(11 of
27 appeals)

33%
(9 of
27 appeals)

30%

22%
(2 of
9 appeals)

19%
(5 of
27 appeals)

20%
4%
(1 of
28 appeals)

10%

28%
(8 of
28 appeals)

22%
(2 of
9 appeals)
11%
(3*of
28 appeals)

0%
(0 of
38 appeals)

13%
(5 of
38 appeals)

29%
(11 of
38 appeals)
22%
(2 of
9 appeals)

7%
(2 of
27 appeals)

0%

Affirmed

Affirmed in Part/Rev ersed in
Part

Reversed/Vacated/Remanded

Appeal Dismissed or
W ithdrawn

p.
l Cor 2017
a
,
eutic
racby individualer 12 or proposed intervenor–
Note: Most appeals were filed on behalf of the class; othersNutfiled
were
b plaintiffs
.
em
plaintiffs. E.D. Pa. = 31 cases, 36 appeals; S.D. ert=v cases, 12Sept N.D. Ill. = 39 cases, 53 decided appeals, 3
11
b Fla.2 pending. n appeals;
pending; N.D. Cal. = 23 cases, 32 decidedm
La appeals, ed o
* Includes the Third Circuit vacating the settlement in the General Motors Pick-Up Truck case (55 F.3d 768 (3d Cir.),
ed in 3 archiv
cit
cert. denied, 116 S. Ct. 88 (1995)). 42
-56
o. 15
N
Appeal Outcomes

Appendix C

157

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Figure 80: Disposition on Appeals Brought by Defendants
E .D. Pa.
S.D. Fla.
N.D. Ill.
N.D. Cal.

100%

Percentage of Appeals by Defendants

90%
80%
70%
60%

67%
(2 of
3 appeals)

60%
(3 of
5 appeals)

50%
(4 of
8 appeals)

53%
(8 of
15 appeals)
40%
(2 of
5 appeals)

50%
40%
30%

33%
(1 of
3 appeals)

25%
(2 of
8 appeals)

20%
(3 of
15 appeals)

20%

7%
(1 of
0%
0%
0%
15 appeals)
(0 of
(0 of
(0 of
8 appeals) 3 appeals)
5 appeals)

10%

25%
(2 of
8 appeals)

20%
(3 of
15 appeals)

0%
(0 of
3 appeals)

0%
(0 of
5 appeals)

0%

Affirmed

Affirmed in Part/Reversed in
Part

Reversed/Vacated/Remanded

Appeal D ismissed or
Withdrawn

Appeal Outcomes

Note: Includes defendants, third-party defendants, and proposed intervenor–defendants. E.D. Pa. = 31 cases, 36 appeals; S.D. Fla. = 11 cases, 12 appeals; N.D. Ill. = 39 cases, 53 decided appeals, 3 pending; N.D. Cal. = 23 cases, 32
decided appeals, 2 pending.

p.
l Cor 2017
,
utica
race mber 12
ut
Figure 81: Percentage of Cases with Rulings on Certification
v. N Septe
bert
n
Lam
ed o
100%
ed in 3 archiv
cit
5642
90%
. 15No
66%
80%
Percentage of Cases

70%

65%
(76 of
117 cases)

(77 of
116 cases)

49%
(50 of
102 cases)

60%
36%
(26 of
72 cases)

50%
40%
30%
20%
10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal.

District Court

158

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Figure 82: Appeals in Cases with Ruling on Certification
Appeals Filed Before Ruling on
Certification
Appeals Filed After Ruling on
Certification
84%
(26 of
31 appeals)

100%
90%

Percentage of Cases with
Ruling on Certification

100%
(6 of
6 appeals)

87.5%
(35 of
40 appeals)

84%
(16 of
19 appeals)

80%
70%
60%
50%
40%
30%
20%

16%
(5 of
31 appeals)

10%

16%
(3 of
19 appeals)

12.5%
(5 of
40 appeals)

0%
(0 of
6 appeals)

0%

E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal.

District Court

Percentage of Cases with Ruling on Certification

orp. 17
l Cwith Ruling on
Figure 83: Number of Cases with at Least One Appeal inca
uti Cases , 20
Certification
race mber 12
t
. Nu epte
Cases with at Least One ert v
mb
Appeal
on S
100%
in La rc81%ived
Cases tedNo Appeal a h
ci with 423 (21 of
78%
90%
(39 of
73% 56
26 cases)
51(55 of
50 cases)
80%
No. 75 cases)
66%
(51 of
77 cases)

70%
60%
50%
40%
30%

27%
(20 of
75 cases)

20%

34%
(26 of
77 cases)
19%
(5 of
26 cases)

22%
(11 of
50 cases)

10%
0%
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal.

District Court

Appendix C

159

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Table 1: Certified, Settled (b)(3) Classes with Average Net Distribution < $100 Per
Class Member
Caption, Docket No.,
and District

Class Definition

Gross Monetary
Award

Net Monetary
Award/ No. of
Notices Sent

Total Award
to Class
Representatives

Nonmonetary
Relief

Attorneys’ Fee
Award (method)
(% of gross
monetary award)

(1) Masnik v. Bolar
Pharmaceutical, No.
90-4086 (E.D. Pa. filed
June 15, 1990).

Holders of
SmithKline
Beckman Corp.
common stock
who sold it
during class
period or who
exchanged it in
the merger

$2.55 M

$1.48 M/
75,000 members
= $19.69 per
member

$6,000

None

$765,000
(lodestar)
(30% of gross
monetary award)

(2) Mandel v. Mortgage
& Realty, No. 90-1848
(E.D. Pa. filed Mar. 16,
1990).

Purchasers of
Mortgage &
Realty common
stock during
class period

$1.33 M

$752,705/
17,640 members
= $42.67 per
member

None indicated

None

$351,467
(% of recovery)
(26% of gross
monetary award)

(3) Hoxworth v.
Blinder, No. 88-285
(E.D. Pa. filed Jan. 14,
1988).

Buyers and
sellers of 21
companies’
securities
through defendant during class
period

$5.27 M

$3.19 M/ 72,519
members =
$44.06 per
member

$21,000

None

$1.73 M
(% of recovery)
(33% of gross
monetary award)

(5) Cannon v. Royce
Laboratories, Inc., No.
92-923 (S.D. Fla. filed
Apr. 23, 1992).

Purchasers of
securities of
Royce Laboratories during class
period

$0.85 M

$416,047/
5,980 members
= $69.57 per
member

None indicated

750,000 shares
of common stock
and 1,975,000
warrants were
included in the
settlement, 70%
of which were
distributed to the
class

$255,000
(% of recovery;
plus 30% of
common stock
and warrants
awarded)
(30% of gross
monetary award)

(6) Weiner v. Southeast
Banking Co., No. 90760 (S.D. Fla. filed
Mar. 22, 1990).

Purchasers of
Southeast
Banking securities during class
period

$5 M

$3.64 M/
46,068 members = $78.95
per member

$14,000

None

$1.25 M
(% of recovery)
(25% of gross
monetary award)

(7) In re GE Energy
Choice Light Bulb
Consumer Litigation,
No-92-4447 (N.D. Cal.
filed Nov. 12, 1992).

Consumer
purchasers of GE
Energy Choice
throughout the
U.S. during a 3.5
year class period

$3.25 M

$2 M/
123,000 members = <$16.26
per membera

None indicated

Modifications of
advertising and
packaging practicesb

$975,000
(% of recovery)
(30% of gross
monetary award)

p.
l Cor 2017
,
utica
race mber 12
ut
te
v. N
bert $2.21on Sep$27,500
(4) Weiner v. Meridian
Purchasers of
$3.25 M
None
$973,320
am ved M/ 45,290
Bancorp., Inc., No. 90Meridian Ban- L
($975,000 rein
i members =
ted
6211 (E.D. Pa. filed
$48.89 per
quested; method
cicorp securities 23 arch
Sept. 26, 1990).
during class
member
not specified)
564
(30% of gross
. 15period
monetary award)
No

(cont.)

160

Class Actions

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Table 1: Certified, Settled (b)(3) Classes with Average Net Distribution < $100 Per
Class Member (continued)
Caption, Docket No.,
and District

Class Definition

Net Monetary
Award/ No. of
Notices Sent

Gross Monetary
Award

Total Award
to Class
Representatives

Nonmonetary
Relief

Attorneys’ Fee
Award (method)
(% of gross
monetary award)

(8) Sahadi v. Stone, No.
93-20645 (N.D. Cal.
filed Sept. 1, 1993).

Purchasers of
Read-Rite stock
during the class
period

$2 M

$1.24 M/ 17,000
members =
$73.17 per
member

None indicated

None

$600,000
(% of recovery)
(30% of gross
monetary award)

(9) Nathanson IRA v.
Tenera, No. 91-3454
(N.D. Cal. filed Oct. 2,
1991).

Purchasers of
units of Tenera
during class
period

$0.125 M

$73,327/ 3,000
members =
$24.44 per
member

$3,000

None

$20,077
($37,500
requested; % of
recovery)
(16% of gross
monetary award)

Note: M = millions of dollars.
aThe distribution per class member was probably less because purchasers of GE Energy Choice products who were

not class members were also allowed to participate.
bNote that the monetary relief consisted of a funded rebate program with any surplus to be donated to charity or

p.
l Cor 2017
utica r 12,
raceby mbJudicial Panel on
t
Table 2: Number of Consolidated Cases Transferred te the e
v. Nu
ert Suit on Sep
Multidistrict Legislation and Nature of
mb
in La rchived
d
Nature of Suit citeE.D. Pa. (n3 a S.D. Fla. (n = 2)
= 7)
N.D. Ill. (n = 6)
N.D. Cal. (n = 4)
5642
Other contract actions 151
0
0
0
No.
Contract product liability
1
1
0
0
energy research purposes.

Personal injury–product
liability

1

0

1

Antitrust

2

0

2

3

Racketeer Influenced and
Corrupt Organization
Act (RICO)

0

0

1

0

Property rights–trademark

1

0

0

0

Securities

1

1

2

1

Appendix C

0

161

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Table 3: Number of Consolidations by District Court and Nature of Suit
E.D. Pa. (n = 24)

S.D. Fla. (n = 10)

N.D. Ill. (n = 10)

N.D. Cal. (n = 17)

Contract

5

0

1

0

Torts–other fraud

1

0

1

1

Antitrust

1

0

0

0

Other civil rights

0

0

1

1

Racketeer Influenced and
Corrupt Organization
Act (RICO)

0

0

1

0

Prisoner petitions–habeas
corpus

0

0

0

1

Other labor litigation

0

1

0

0

Employee Retirement
Income Security Act
(ERISA)

1

0

1

0

Trademark

2

0

0

1

Securities

13

9

5

13

Other statutory actions

1

0

0

0

Nature of Suit

p.

Table 4: Number of Related Cases Not Consolidated with al CorLitigation Pending
Similar
017
ic
in Federal Courts and Nature of Suit
ceut
12, 2
a

tr
er
v. Nu S N.D. Ill. b
t S.D. Fla. (n = 4) eptem(n = 6)
ber
Lam ived 0on
Contracts–stockholders suits
0
0
in
cited 423 arch
Other contract actions
2
0
0
Contract product liability 5-56
1
0
0
1
No.
Personal injury–product
0
0
0
Nature of Suit

E.D. Pa. (n = 13)

liability

N.D. Cal. (n = 23)
1
0
0
1

Other fraud

0

0

1

0

Antitrust

0

0

0

1

Other civil rights

2

0

1

1

Civil rights–jobs

1

0

0

2

Racketeer Influenced and
Corrupt Organization Act
(RICO)

2

0

0

0

Prisoner petitions–habeas
corpus

0

0

0

1
(cont.)

162

Class Actions

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Table 4: Number of Related Cases Not Consolidated with Similar Litigation Pending
in Federal Courts and Nature of Suit (continued)
E.D. Pa. (n = 13)

S.D. Fla. (n = 4)

N.D. Ill. (n = 6)

N.D. Cal. (n = 23)

Prisoner–civil rights

0

0

0

1

Employee Retirement Income
Security Act (ERISA)

0

0

0

2

Property rights–trademark

1

0

0

0

Securities

4

4

3

11

Other statutory actions

0

0

1

2

Nature of Suit

Table 5: Number of Related Cases Not Consolidated with Similar Litigation Pending
in State Courts and Nature of Suit
E.D. Pa. (n = 4)

S.D. Fla. (n = 1)

N.D. Ill. (n = 3)

Contract product liability

1

0

0

Personal injury–medical malpractice

1

0

0

Nature of Suit

p.
l Cor 2017
Other civil rights
0
0
2
,
utica
race mber 12
Securities
2
0
1
ut
v. N Septe
bert
m
on
in La chived
ed Cases3 arConsolidated in Federal Courts
cit
Table 6: Difficulties in
42 Not
5-56
Case
Type 1
Difficulty
No.of Case
Other personal property damage

0

1

0

Case 1

Statutory action

Documents were filed in both cases—one was a class action and the
other was not. On different occasions, class-related documents were
filed in the nonclass case, but not in the class case, which caused
confusion not only for the parties but for the court.

Case 2

Contract

Nonconsolidated case was stayed and later closed because the related
case was farther along. It was not clear from the case file how much
time and effort had been expended on the discovery process, but one
can assume that there was duplication of effort.

Case 3

Racketeer
Influenced and
Corrupt Organization Act
(RICO)

In this case, five other class actions were pending against the defendants who moved before the Judicial Panel on Multidistrict Litigation
for transfer of all of the cases to a single district. Prior to the court’s
ruling on the MDL issue the case was dismissed without prejudice.
Defendant later learned that to have the case transferred by the Judicial Panel the case had to be open. Defendant then had to move for
reconsideration of the court’s dismissal of the case. The court denied
vacating the dismissal order.

Case 4

Securities

This case contained identical issues and the same defendants as in
other related cases. The court found that the case was related but
decided not to consolidate it.

Appendix C

163

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Table 7: Difficulties in Cases Not Consolidated in State Courts
Case

Type of Case

Difficulty

Case 1

Personal injury–
medical malpractice

In this case the district court decided to abstain from ruling on its
case while the state court case was still pending with parallel claims.
There was considerable delay in the case before the district court
ruled that the state court was a better forum for the plaintiffs.

Case 2

Contract product liability

A number of class action complaints were filed in several state courts
relying on state law products liability claims. Plaintiffs in those cases
objected to the settlement. The court responded by coordinating the
notice and settlement proposal to account for the state actions.

Case 3

Statutory actions

Class action sought on state law claims. Defendant objected because
of the duplicative nature of the litigation.

Case 4

Securities

Co-lead counsel filed a motion to take action against another attorney, who attempted to dismiss voluntarily the federal action and file a
duplicative class action in state court. The court held that the federal
action could only be voluntarily dismissed after counsel represented
to the court that he would dismiss the state class action and not file
any other duplicative class actions.

Table 8: Median Case Duration (in Months) of (b)(3) Securitiesorp.
and Nonsecurities
Cases with Court-Approved Settlements
ical C , 2017
ut

r 12
trace
. Nu eptembe
ert v
Civil
Civil
S
amb ved onRights
Rights
L
in
i 50
Settled Cases
27 ite 13
25
24
—
c d 423 arch
(n=13)
(n=6)
56 (n=2) (n=9) (n=2) (n=0)
. 15- 18
Nonsettled Cases No 48
—
—
—
—
E.D. Pa.
NonSecurities securities

(n=3)

(n=8)

S.D. Fla.
NonSecurities securities

(n=0)

(n=0)

N.D. Ill.
NonSecurities securities

(n=0)

(n=0)

N.D. Cal.
Civil
Rights

NonSecurities securities

Civil
Rights

Settled Cases

28
(n=9)

36
(n=13)

78
(n=3)

28
(n=16)

11
(n=6)

55
(n=2)

Nonsettled Cases

12
(n=4)

48
(n=1)

—
(n=0)

46
(n=2)

58
(n=1)

—
(n=0)

Note: The “median case duration” is from filing the first complaint to termination of the case.

164

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Table 9: Rate of Certification in (b)(3) Securities and Nonsecurities Cases with
Motions or Orders Filed on Certification
E.D. Pa.
NonCivil
Securities securities Rights
(n = 16)
(n = 14)
(n = 2)
Percentage of
Cases Certified

94

64

100

S.D. Fla.
NonCivil
Securities securities Rights
(n = 9)
(n = 2)
(n = 0)
100

100

—

N.D. Ill.

Percentage of
Cases Certified

N.D. Cal.

NonCivil
Securities securities Rights
(n = 13)
(n = 14)
(n = 3)

NonCivil
Securities securities Rights
(n = 18)
(n = 7)
(n = 2)

100

93

100

94

86

100

Table 10: Number of Numerosity and Representativeness Objections to Certification
in (b)(3) Securities and Nonsecurities Cases with Disputes Over Certification

p.
l Cor 2017
,
utica
race mber 12
ut
.N 0
e
Numerosity
0
4
0 ert v
0
2
2
S t3
b (0%) on(0%) ep (33%) (25%) (67%)
objection
(0%)
(50%) Lam
(0%)
ed
in
iv
Represent9 ite
3
6
4
6
2
c d 5 423 arch 2
ativeness objec(90%) -56
(63%)
(100%)
(100%)
(100%)
(44%)
(75%)
(67%)
15
tion
No.
E.D. Pa.
S.D. Fla.
N.D. Ill.
N.D. Cal.
NonNonNonNonSecurities securities Securities securities Securities securities Securities securities
(n = 10)
(n = 8)
(n = 3)
(n = 2)
(n = 6)
(n = 9)
(n = 8)
(n = 3)

Appendix C

165

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Table 11: Median Settlement Fund Distribution Comparisons for Certified (b)(3)
Securities and Nonsecurities Cases with Court-Approved Settlements
E.D. Pa.

S.D. Fla.

Securities
(n = 12)

Nonsecurities
(n = 6)

Net distributiona

$2,014,370

Fee awardb
Net settlement
per class member

N.D. Ill.
Securities
(n = 9)

Nonsecurities
(n = 13)

N.D. Cal.
NonSecurities
securities
(n = 14)
(n = 6)

$123,973

$2,691,651

$44,639

$3,040,348

$1,100,000

$660,000

$175,000

$1,200,000

$338,771

$1,500,000

$1,987,500

$315
(n = 9)

—
(n = 0)

$412
(n = 9)

$562
(n = 8)

$336
(n = 12)

$956
(n = 5)

Securities
(n = 9)

Nonsecurities
(n = 2)

$0c

$1,734,571

$1,230,559

$225,000

$299
(n = 11)

$0
(n = 5)d

a“Net distribution” is net of attorneys’ fees and administrative expenses.
b“Fee award” equals the total amount of fees awarded to plaintiffs’ counsel, excluding sanctions and out-of-pocket

expenses.
c Mean = $19,377.
d Mean = $166.

p.
l Cor Cases7
Table 12: Median Case Duration (in Months) of (b)(2)utica
Nonsecurities 201 with
,
race mber 12
Court-Approved Settlements
ut
te
v. N
bert Fla. on SepN.D. Ill.
E.D. Pa.
N.D. Cal.
am S.D. ed
in L Settled iv
Settleded
Nonsettled arch Nonsettled Settled
Nonsettled
Settled Nonsettled
cit
423 41
All non15 5-56 17
41
60
106
21
46
.1
securities
(n = 3)
(n = 3)
(n = 1)
No(n = 14) (n = 11) (n = 2) (n = 2) (n = 6)
Civil rights

13
(n = 5)

13
(n = 1)

57
(n = 1)

57
(n = 1)

26
(n = 6)

26
(n = 3)

21
(n = 1)

—
(n = 0)

Note: The “median case duration” is from filing the first complaint to termination of the case.

Table 13: Rate of Certification in (b)(2) Nonsecurities Cases with Motions or Orders
Filed on Certification
E.D. Pa.
NonCivil
securities Rights
(n = 19)
(n = 12)
Percentage of
Cases Certified

166

95

92

S.D. Fla.
NonCivil
securities Rights
(n = 3)
(n = 3)
67

67

N.D. Ill.
NonCivil
securities Rights
(n = 12)
(n = 6)
83

67

N.D. Cal.
NonCivil
securities Rights
(n = 4)
(n = 1)
50

100

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Table 14: Number of Numerosity and Representativeness Objections to Certification
in (b)(2) Nonsecurities Cases with Disputes over Certification
E.D. Pa.
NonCivil
securities Rights
(n = 7)
(n = 5)

S.D. Fla.
NonCivil
securities Rights
(n = 2)
(n = 2)

N.D. Ill.
NonCivil
securities Rights
(n = 8)
(n = 4)

N.D. Cal.
NonCivil
securities Rights
(n = 2)
(n = 1)

Numerosity
Objection

5
(71%)

3
(60%)

0
(0%)

0
(0%)

3
(38%)

2
(50%)

1
(50%)

1
(100%)

Representativeness Objection

3
(43%)

2
(40%)

0
(0%)

0
(0%)

7
(88%)

4
(100%)

1
(50%)

1
(100%)

Table 15: Median Fee Awards for Certified (b)(2) Nonsecurities Cases with CourtApproved Settlements
E.D. Pa.
NonCivil
securities Rights
(n = 9)
(n = 6)

S.D. Fla.
NonCivil
securities Rights
(n = 1)
(n = 1)

N.D. Ill.
NonCivil
securities Rights
(n = 6)
(n = 3)

N.D. Cal.
NonCivil
securities Rights
(n = 2)
(n = 1)

$69,000p.$53,000
l Cor 2017
,
utica
race mber 12
ut
a“Fee award” equals the total amount of fees awarded . N
counsel,
ert v to plaintiffs’epte excluding sanctions and out-of-pocket
expenses.
amb ved on S
in L
i
cited 423 arch
6
Table 16: Trial . 15-for Nonprisoner Class Actions Compared to Nonprisoner
Rates 5
oActions
N
Nonclass Civil
Median Fee
Awarda

$49,000

$34,779

$1,378

E.D. Pa.

$1,378

$112,500

$224,810

S.D. Fla.

N.D. Ill.

N.D. Cal.

Trial

Class
(n = 108)

Nonclass
(n = 7,603)

Class
(n = 58)

Nonclass
(n = 5,174)

Class
(n = 108)

Nonclass
(n = 8,264)

Class
(n = 94)

Nonclass
(n = 5,404)

Rate

5.5%

4.4%

3.4%

3.6%

5.5%

3.2%

4.3%

2.7%

6

338

2

5,174

6

264

4

148

Number

Note: Nonclass: Federal Judicial Center integrated database of Administrative Office of the U.S. Courts data; Class:
Federal Judicial Center class action project database (see first paragraph, Appendix D). The two data sets refer to
civil cases terminated between July 1, 1992, and June 30, 1994.
The Administrative Office data on trial rates for the study cases differed from our data for the same set of cases. In
three districts, the Administrative Office data showed fewer trials than the Federal Judicial Center data and in the
other district the numbers were the same. Overall, the Administrative Office data showed thirteen trials compared to
eighteen in the Federal Judicial Center database. The trial rates shown by the Administrative Office data were 4%
(four), 2% (one), 6% (six), and 2% (two), respectively.

Appendix C

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Table 17: Trial Rates for Securities Class Actions Compared to Securities Civil
Actions
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal.

Trial

Class
(n = 30)

Nonclass
(n = 191)

Class
(n = 15)

Nonclass
(n = 187)

Class
(n = 23)

Nonclass
(n = 148)

Class
(n = 35)

Nonclass
(n = 198)

Rate

10.0%

16.7%

0%

5.8%

8.7%

5.4%

0%

0%

3

32

0

11

2

8

0

0

Number

Note: Nonclass: Federal Judicial Center integrated database of Administrative Office of the U.S. Courts data, Class:
Federal Judicial Center class action project database (see first paragraph, Appendix D). The two data sets refer to
civil cases terminated between July 1, 1992, and June 30, 1994.
The Administrative Office data on trial rates for securities class actions differed from the Federal Judicial Center
data on the same cases in only one instance. In E.D. Pa., the Administrative Office data showed two trials, a rate of
7%, whereas the Federal Judicial Center data showed three trials, a rate of 10%.

Table 18: Number of Multiple Certifications and Rule 23(b) Certifications
Rule 23(b) Combinations

E.D. Pa. (n = 5)

S.D. Fla. (n = 1)

N.D. Ill. (n = 5)

N.D. Cal. (n = 5)

23(b)(1)(A) and (b)(2)

0

0

1

23(b)(1)(B) and (b)(3)

0

0

0

1

23(b)(2) and (b)(3)

3

1

0

1

23(b)(3) and type not specified

0

0

0

2

p0.
l Cor 2017
23(b)(1)(A), (b)(1)(B), and type
0
0
,0
u1tica
race mber 12
not specified
ut
t v. N Septe
23(b)(1)(A) and (b)(2)
2 ber
0 n
1
0
m
o
in La0 rchived0
23(b)(1)(A), (b)(1)(B), and ted
1
0
ci (b)(2) 423 a
23(b)(1)(B) and (b)(2)
0
0
1
0
6
15-5
o. (b)(3)
N
23(b)(1)(B), (b)(2), and
0
0
0
1

168

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Table 19: District Judge and Magistrate Judge Time Expended
Judge Time (in Hours)
Certified
Not certified
(n = 11)
(n = 40)

Type of Activity

Average Hours per Case
Certified

Not certified

7.2

0.4

13

5.5

0.3

7

5.8

0.2

30

48

2.7

1.2

Notice to class

4

0

0.4

0

Pretrial conference

1

1

0.1

0

All other pretrial conferences

1

0

0.1

0

Trial

0

10

0

0.3

Facilitating settlement

38

20

3.5

0.5

Review and rule on proposed settlement

31

6

2.8

0.2

Presiding at settlement approval hearing

16

1

1.5

0

Ruling on attorneys’ fees

25

0

2.3

0
0

79

16

Motions to dismiss

61

Discovery

64

Summary judgment

Class certification

11

0

1

18

119

1.6

379

Monitoring or enforcing final order

241

34.5

3
orp.6.1 17
lC
20
utica
ceCases (Feb. r 12, (unpublished report on
Source: Willging et al., Preliminary Report on Time Study Class ra
Action
9, 1995)
t
NuCenter). mbe
file with the Information Services Office of the Federalv.
ert Judicialn Septe
mb
o
in La rchived
ed
cit
3a
Table 20: Grounds Cited42Rulings on Motions to Dismiss in Relation to Timing of
56 in
15Ruling on Certification
No.
Other

Total

Grounds Cited in
Rulinga

E.D. Pa.
Before
After
(n = 31)
(n = 9)

S.D. Fla.
Before
After
(n = 14)
(n = 3)

N.D. Ill.
Before
After
(n = 28)
(n = 18)

N.D. Cal.
Before
After
(n = 26)
(n = 6)

Rule 12(b)(1)

6

1

0

0

3

7

1

0

Rule 12(b)(2)

0

0

0

0

0

1

0

0

Rule 12(b)(3)

0

0

0

0

0

1

0

0

Rule 12(b)(6)

18

4

6

0

11

12

15

3

Rule 12(b)(7)

2

0

0

0

0

0

0

0

Other

12

4

4

2

5

3

12

2

Unknown
Total

3

2

5

0

9

2

5

1

41

11

15

2

28

26

33

6

aMore than one citation in some rulings.

Appendix C

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Table 21: Grounds Cited in Rulings on Motions to Dismiss in All Class Actions
Terminated Between July 1, 1992, and June 30, 1994
E.D. Pa.
(n = 61)

S.D. Fla.
(n = 31)

N.D. Ill.
(n = 63)

N.D. Cal.
(n = 48)

11

2

15

2

Lack of federal question

5

0

4

0

Incomplete diversity

0

0

1

0

Insufficient class amount in
controversy

2

0

1

0

Insufficient individual amount
in controversy

0

0

0

0

Other

1

0

3

1

Rule 12(b)(2) (lack of personal
jurisdiction)

0

0

2

1

Rule 12(b)(3) (improper venue)

1

0

1

0

Rule 12(b)(4) (insufficiency of
process)

0

0

0

0

Rule 12(b)(5) (insufficiency of
service of process)

0

1

0

0

Rule 41(a) (voluntary dismissal)

1

0

0

0

Rule 41(b)(by court order)

1

4

2

0

28 U.S.C. 1915(d) (frivolous)

0

5

3

3

Mootness

3

1

0

1

Abstention

2

0

1

0

Standing

1

0

2

0

Stipulated

2

0

1

4

Other

8

8

2

4

Unknown

10

13

15

8

Total

82

46

80

60

Grounds Cited in Rulinga
Rule 12(b)(1) (lack of subject
matter jurisdiction)

p.
l Cor 2017
,
utica
race mber 12
ut33
Rule 12(b)(6) (failure to state a
33
9 . N
e 27
v
claim)
Sept
bert
Lam i0 ed on0
Rule 12(b)(7) (failure to join a d in 2
0
hv
e
cit
party)
3 arc
56427
Rule 9(b) (failure to plead fraud
3
3
10
. 15No
with specificity)

aSome rulings cited more than one source.

170

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Table 22: Outcomes of Rulings on Motions to Dismiss in Relation to Timing of
Rulings on Class Certification
E.D. Pa.
Before
After

Outcome

S.D. Fla.
Before
After

N.D. Ill.
Before
After

N.D. Cal.
Before
After

Dismiss all

4

2

4

1

8

9

8

3

Dismiss part

6

3

1

0

11

6

11

1

Deny

16

2

8

2

7

3

5

2

Defer

0

0

0

0

0

0

1

0

No action

0

0

0

0

0

0

0

0

Other

5

2

1

0

0

1

1

0

31

9

14

3

26

19

26

6

Total

Table 23: Outcomes of Rulings on Motions for Summary Judgment in Relation to
Timing of Rulings on Class Certification
E.D. Pa.
Before
After

Outcome

1

Granted

S.D. Fla.
Before
After

8

1

2

N.D. Ill.
Before
After
4

11

N.D. Cal.
Before
After
2

3

p.
1
4
0
0
1
2
4
l Cor 21017
,
utica
6
6
0
5
4 ac
r e 3 mber2 12 0
ut
te
v. N
0
0
0
2
0
bert 0 on 0Sep 0
am ved 2
0
0 L
1
0
0
1
in
i 0
8cited 18
2
11
16
10
5
arch 7
3
5642
o. 15

Granted in
part
Denied
Deferred
Other
Total

N

Table 24: Percentage of Cases with Rulings on Motions to Dismiss, Motions for
Summary Judgment, and Sua Sponte Dismissals
Action

E.D. Pa.
(n = 121)

S.D. Fla.
(n = 72)

N.D. Ill.
(n = 117)

N.D. Cal.
(n = 107)
48

Motions to dismiss

61

31

63

Sua sponte dismissals

7

12

12

12

Motions for summary judgment

35

13

31

22

Cases with at least one ruling
regarding dismissal or summary
judgment

81
(67%)

48
(67%)

85
(73%)

64
(60%)

Cases with both a dismissal
ruling and a summary judgment
ruling

22
(18%)

8
(11%)

21
(18%)

17
(16%)

Appendix C

171

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Table 25: Outcome of Rulings on Motions to Dismiss
E.D. Pa.
(n = 61)

S.D. Fla.
(n = 31)

N.D. Ill.
(n = 62)

N.D. Cal.
(n = 48)

Dismissed entire complaint

26%
(16 cases)

39%
(12 cases)

42%
(26 cases)

48%
(23 cases)

Dismissed one or more claims or
parties

21%
(13 cases)

10%
(3 cases)

34%
(21 cases)

29%
(14 cases)

Denied the motion

38%
(23 cases)

45%
(14 cases)

22%
(14 cases)

19%
(9 cases)

Other

15%
(9 cases)

6%
(2 cases)

2%
(1 case)

4%
(2 cases)

Outcome of Motion to Dismiss

Table 26: Outcome of Summary Judgment Rulings
E.D. Pa.
(n = 35)

S.D. Fla.
(n = 13)

N.D. Ill.
(n = 31)

N.D. Cal.
(n = 22)

Granted in whole

12
(34%)

4
(31%)

17
(55%)

8
(36%)

Granted in part

7
(20%)

1
(8%)

4
(13%)

6
(27%)

13
(37%)

7
(54%)

8
(26%)

5
(23%)

E.D. Pa.
(n = 117)

S.D. Fla.
(n = 72)

N.D. Ill.
(n = 116)

N.D. Cal.
(n = 102)

Dismissal

24
(20%)

14
(19%)

20
(17%)

18
(18%)

Summary judgment

16
(14%)

6
(8%)

19
(16%)

11
(11%)

Subtotal

40
(34%)

20
(27%)

39
(33%)

29
(28%)

Minus duplicate
cases

–3
(–3%)

–1
(–1%)

–3
(–3%)

0
(0%)

Total

37
(31%)

19
(26%)

36
(30%)

29
(28%)

Outcome

p.
l Cor 2017
,
utica
Deferred
0
0
0
2
race (9%)ber 12
(0%)
(0%)
(0%)
ut
v. N 2 Septem
Other
3
1
1
bert
(9%)
(8%)
(6%)
(5%)
Lam ived on
in
cited 423 arch
-56
o 15
Table 27: Cases.Closed as a Result of a Ruling on a Motion to Dismiss or Summary
N
Denied

Judgment

Ruling

172

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Table 28: Median Times (in Months) from Filing of Complaint to Filing of First
Motion to Dismiss and from Filing of First Motion to Dismiss to the First Ruling on a
Motion to Dismiss
Time

E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal.

Median time from complaint to
first motion to dismiss

2.4

2.5

2.7

4.2

Median time from first motion to
dismiss to first ruling

3.1

7.4

3.8

2.6

75th percentile of time from first
motion to dismiss to first ruling

4.7

13.7

8.6

5.4

Table 29: Median Times (in Months) from Filing Complaint to Filing of First Motion
for Summary Judgment and from Filing of First Motion for Summary Judgment to
First Ruling on Summary Judgment
Time

E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal.

Median time from complaint to
first motion for summary judgment

7.8

9.6

12.2

12.2

p.
l Cor 2017
c
Median time from first motion
3.7
7.4
9.0
,
uti3.5 a
race mber 12
for summary judgment to first
ut
v. N Septe
ruling
bert
m 15.4ed on
75th percentile of time from first n La
7.9
16.8
5.2
ed i 3 archiv
motion for summary judgment
cit
to first ruling
5642
. 15No

Appendix C

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Table 30: Number of Cases with Simultaneous Motion to Certify and Approve
Settlement and Nature of Suit
E.D. Pa.
(n = 7)

N.D. Ill.
(n = 7)

N.D. Cal.
(n = 14)

Torts–other fraud

0

0

1

Antitrust

0

1

0

Civil rights–prisoner

1

0

0

Civil rights–accommodations

0

0

1

Civil rights–other

4

1

1

Racketeer Influenced and Corrupt Organization Act (RICO)

1

0

0

Labor laws–other litigation

0

0

1

Employee Retirement Income
Security Act (ERISA)

0

0

2

Securities

0

1

8

Other statutory actions

0

4

0

Nature of Suit

p.
l Cor 2017
,
utica
race mber 12
ut
v. and Septe
Table 31: Number of Certified CasesrWith N Without a Simultaneous Settlement
be t
n
and Type of Class
Lam
ed o
ed in 3 archiv
cit
5642 Federal Rule of Civil Procedure
. 15- 23(b)(1)(A) 23(b)(1)(B)
Case type o
23(b)(2)
23(b)(3)
N
1

Contract: insurance

0

0

With simultaneous settlement

4

2

8

17

Without simultaneous
settlement

11

8

18

36

174

Class Actions

Case: 15-56423, 09/15/2017, ID: 10582263, DktEntry: 37-2, Page 183 of 208

Table 32: Number of Certified Cases with Motions to Reconsider or Decertify and
Outcome
E.D. Pa.
(n = 11)

S.D. Fla.
(n = 1)

N.D. Ill.
(n = 6)

N.D. Cal.
(n = 5)

Total

Certification affirmed

5

0

3

1

9

Certification reversed

1

0

0

0

1

Certification modified

0

0

1

1

2

Reconsideration denied

2

1

1

1

5

Reconsideration deferred

0

0

0

1

1

No action taken

1

0

0

1

2

Other

2

0

1

0

3

Outcome

Table 33: Number of Oppositions to Certification and Nature-of-Suit Categories
E.D. Pa.
(n = 50)

S.D. Fla.
(n = 21)

N.D. Ill.
(n = 45)

N.D. Cal.
(n = 25)

Stockholders suits

0
(0%)

0
(0%)

0
(0%)

1
(4%)

Personal injury–medical
malpractice

1
(2%)

0
(0%)

0
(0%)

0
(0%)

Personal injury–product
liability

1
(2%)

0
(0%)

1
(2%)

0
(0%)

Torts–other fraud

1
(2%)

0
(0%)

3
(7%)

0
(0%)

Torts–truth in lending

0
(0%)

0
(0%)

1
(2%)

0
(0%)

Torts–other personal
property damage

1
(2%)

0
(0%)

0
(0%)

0
(0%)

Antitrust

2
(4%)

0
(0%)

0
(0%)

2
(8%)

Withdrawal

0
(0%)

1
(5%)

0
(0%)

0
(0%)

Other civil rights

7
(14%)

2
(10%)

10
(22%)

2
(8%)

Nature of Suit

p.
l 1Cor 2017
Other contract actions
1
2
1
tica
,
(2%)
(10%)
ac u
r(2%) e mb(4%) 12
ut 0 te er
Contract product liability
1
0
t N (0%)
r0 v.
(2%)
(0%)
be(0%) on Sep
Lam
ed
Torts–marine
0
1
ed in0 3 archi1v
(0%)
(5%)
(0%)
(4%)
cit
Torts–motor vehicle–
1
0
0
0
5642
. 15- (2%)
product liability o
(0%)
(0%)
(0%)
N

(cont.)

Appendix C

175

Case: 15-56423, 09/15/2017, ID: 10582263, DktEntry: 37-2, Page 184 of 208

Table 33: Number of Oppositions to Certification and Nature-of-Suit Categories
(continued)
E.D. Pa.
(n = 50)

S.D. Fla.
(n = 21)

N.D. Ill.
(n = 45)

N.D. Cal.
(n = 25)

Civil rights–jobs

5
(10%)

1
(5%)

4
(9%)

2
(8%)

Civil rights–
accommodations

2
(4%)

1
(5%)

0
(0%)

1
(4%)

Civil rights–welfare

2
(4%)

0
(0%)

1
(2%)

0
(0%)

Racketeer Influenced and
Corrupt Organization
Act (RICO)

2
(4%)

0
(0%)

2
(4%)

1
(4%)

Prisoner–civil rights

2
(4%)

4
(19%)

2
(4%)

0
(0%)

Labor/Management Relations Act

0
(0%)

0
(0%)

1
(2%)

0
(0%)

Other labor litigation

0
(0%)

1
(5%)

1
(2%)

0
(0%)

Employee Retirement
Income Security Act
(ERISA)

5
(10%)

3
(14%)

6
(13%)

1
(4%)

Securities

13
(26%)

4
(19%)

7
(16%)

Other statutory actions

2
(4%)

1
(5%)

3
(7%)

1
(4%)

Constitutionality of state
statutes

0
(0%)

0
(0%)

1
(2%)

0
(0%)

Nature of Suit

p.
l 11Cor 2017
utica(44%) ,
Social security–black lung
1
0
0
0
race mber 12
ut (0%) te (0%)
(2%)
(0%)v. N
p
t
er0
n Se
Social Security–Social
0 amb
1
0
L
ed o (2%)
Security Disability In(0%)
(0%)
(0%)
ed in 3 archiv
come, Title XVI
cit
5642
Tax suits
0
0
0
1
. 15- (0%)
(0%)
(0%)
(4%)
No

Table 34: Number of Oppositions to Certification and Nature of Suit for All
Categories of Civil Rights, Securities, and ERISA Cases
E.D. Pa.
(n = 50)

S.D. Fla.
(n = 21)

N.D. Ill.
(n = 45)

N.D. Cal.
(n = 25)

All civil rights

16
(32%)

4
(19%)

15
(33%)

5
(20%)

Securities

13
(26%)

4
(19%)

7
(16%)

11
(44%)

Employee Retirement
Income Security Act
(ERISA)

5
(10%)

—

6
(13%)

—

—

4
(19%)

—

—

Nature of Suit

Prisoner–civil rights

176

Class Actions

Case: 15-56423, 09/15/2017, ID: 10582263, DktEntry: 37-2, Page 185 of 208

Table 35: Class Notice of Certification or Settlement Issued in Certified Class Actions
by Type
E.D. Pa.
(n = 53)

S.D. Fla.
(n = 13)

N.D. Ill.
(n = 51)

N.D. Cal.
(n = 35)

23(b)(1)(A)

100%
(3)

0%
(0)

75%
(3)

0%
(0)

23(b)(1)(B)

0%
(0)

0%
(0)

80%
(4)

100%
(2)

23(b)(2)

60%
(12)

100%
(3)

45%
(5)

100%
(5)

23(b)(3)

88%
(21)

100%
(11)

92%
(24)

96%
(22)

No type specified

60%
(3)

0%
(0)

67%
(4)

73%
(8)

Type of Class

Note: Some cases were certified under more than one subsection.

Table 36: Type of Notice in Certified (b)(3) Class Actions

p.
l Cor 2017
Type of Notice
,
utica
race mber 12
Personal
21
11
ut 23 te 21
t v. N Sep
ber9
Publication
15
15
m
on 15
in0 La rchi1ved
Broadcast
0
1
cited 423 a
Other (e.g., posting)
1
2
3
-56 2
o. 15
N
No notice
3
0
2
1
E.D. Pa.
(n = 24)

S.D. Fla.
(n = 11)

N.D. Ill.
(n = 26)

N.D. Cal.
(n = 23)

Note: Most cases used more than one type of notice.

Appendix C

177

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Table 37: Intervention Success Rates for Various Nature of Suit Categories
Nature of Suit

Attempted

Percentage
Granted

Granted

Contract

2

0

0

Product liability–medical
malpractice

1

1

100

Fraud personal property

2

1

50

Antitrust

3

2

67

Other civil rights

2

0

0

Jobs–civil rights

2

1

50

Welfare–civil rights

2

2

100

Racketeer Influenced and Corrupt Organization Act (RICO)

1

0

0

Employee Retirement Income
Security Act (ERISA)

1

1

100

Securities, commodities,
exchange

7

4

57

Social security

1

1

100

p.
l Cor 2017
,
utica
race mber 12
ut
te
v. N
bert Duringn Sep Approval Process as a
Table 38: Types of Objectionsm
a Raisedved o Settlement
in L
i
Percentage of All Settlement Hearings
cited 423 arch
S.D. Fla.
N.D. Ill.
N.D. Cal.
56
-E.D. Pa.
Type of Objection . 15 (n = 35)
(n = 14)
(n = 36)
(n = 32)
o
N
Other statutory actions

2

0

0

Constitutionality of state statutes

1

0

0

Insufficient compensation

20%
(7)

0%
(0)

17%
(6)

6%
(2)

Insufficient deterrence

3%
(1)

0%
(0)

3%
(1)

6%
(2)

Representation parties
favored

3%
(1)

0%
(0)

8%
(3)

0%
(0)

Groups unfairly
disfavored

11%
(4)

7%
(1)

3%
(1)

3%
(1)

Collusion with opposing party

3%
(1)

7%
(1)

6%
(2)

0%
(0)

Attorneys’ fees disproportionate

17%
(6)

21%
(3)

14%
(5)

22%
(7)

Other

29%
(10)

14%
(2)

44%
(16)

25%
(8)

No objection

51%
(18)

64%
(9)

42%
(15)

60%
(19)

178

Class Actions

Case: 15-56423, 09/15/2017, ID: 10582263, DktEntry: 37-2, Page 187 of 208

Table 39: Outcomes of Certified and Noncertified Cases

Outcome

E.D. Pa.
Not
Certified Certified
(n = 36)
(n = 64)

S.D. Fla.
Not
Certified Certified
(n = 6)
(n = 59)

N.D. Ill.
Not
Certified Certified
(n = 35)
(n = 65)

N.D. Cal.
Not
Certified Certified
(n = 16)
(n = 67)

Dismissed on motion

5
(14%)

23
(36%)

0

22
(37%)

4
(11%)

28
(43%)

0

23
(34%)

Summary judgment
granted

2
(5%)

10
(16%)

1
(17%)

4
(7%)

7
(20%)

10
(15%)

2
(13%)

7
(10%)

Judgment after bench trial

1
(3%)

0

0

1
(2%)

0

1
(2%)

0

0

Judgment after jury trial

2
(5%)

1
(2%)

0

0

2
(6%)

1
(2%)

0

1
(1%)

Default judgment

0

1
(2%)

0

0

0

0

0

0

Voluntary dismissal by
plaintiff

0

4
(6%)

0

9
(15%)

0

10
(15%)

0

4
(6%)

1
(3%)

12
(19%)

0

9
(15%)

0

7
(11%)

0

18
(27%)

Stipulated dismissal

8
p. 0
(12%)
l Cor 2017
utica r0 12, 14
Class settlement approved
23
1
6
0 ace 25
r
t
(62%)
(2%)
(100%) Nu
(71%) b
(88%)
m e
.
ert v on12Septe
b 0
Other (e.g., case trans3
12
2
7
0
m
ed (20%) (6%) (11%)
in La r
ferred)
ed(8%) 3(19%) chiv
a
cit
5642 only are not included.
Note: Cases certified for15settlement purposes
No.
0

Nonclass settlement approved

4
(6%)

0

4
(7%)

1
(3%)

2
(3%)
4
(6%)
8
(12%)

Table 40: Settlement of Certified Class Actions Compared with Settlement of Cases
with Class Allegations that Were Not Certified
E.D. Pa.

S.D. Fla.

N.D. Ill.

Certified
(n = 36)

Not
Certified
(n = 64)

Stipulated dismissal

1
(3%)

12
(19%)

0

9
(15%)

0

7
(11%)

0

18
(27%)

Nonclass settlement
approved

0

0

3
(5%)

1
(3%)

8
(12%)

0

2
(3%)

Class settlement approved

23
(62%)

4
(6%)
1a

6
(100%)

0

25
(66%)

0

(2%)

14
(88%)

4
(6%)

27%

100%

20%

69%

23%

88%

36%

Outcome

Total

65%

Certified
(n = 6)

Not
Certified
(n = 59)

N.D. Cal.

Certified
(n = 35)

Not
Certified
(n = 65)

Certified
(n = 16)

Not
Certified
(n = 67)

Note: Cases certified for settlement purposes only are not included.
aCase involved some class relief but not a class certification, either explicitly or implicitly.

Appendix C

179

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Table 41: Disposition by Motion or Trial of Certified Cases Compared with Cases
with Class Allegations Not Certified
E.D. Pa.

S.D. Fla.

N.D. Ill.

N.D. Cal.

Certified
(n = 36)

Not
Certified
(n = 64)

Dismissal on motion

5
(14%)

23
(36%)

0

22
(37%)

4
(11%)

28
(43%)

0

23
(34%)

Summary judgment
granted

2
(6%)

10
(16%)

1
(17%)

4
(7%)

7
(20%)

10
(15%)

2
(13%)

7
(10%)

Judgment after
bench trial

1
(3%)

0

0

1
(2%)

0

1
(2%)

0

0

Judgment after jury
trial

2
(6%)

1
(2%)

0

0

2
(6%)

1
(2%)

0

1
(1%)

29%

54%

17%

46%

37%

62%

13%

45%

Outcome

Total

Certified
(n = 6)

Not
Certified
(n = 59)

Certified
(n = 35)

Not
Certified
(n = 65)

Certified
(n = 16)

Not
Certified
(n = 67)

Note: Cases certified for settlement purposes only are not included.

Table 42: Time from Ruling on Certification to Filing of Settlement . Certified,
orpin
ical C 2, 2017
Settled Class Actions
eut

trac
ber 1
Ill.
. Nu N.D.eptemN.D. Cal.
ert v
Category
(n = 40)
(n = 30)
amb ved on S
L
i months rchmonths
25th percentile
1.9 n
11.2 i
0 months
0 months
cited9.2 months a 18.9 months 15.6 months 14.7 months
423
Median
5-56
1 14.5 months 41.5 months 36 months 22.6 months
75th percentile No.
E.D. Pa.
(n = 43)

S.D. Fla.
(n = 13)

Settlement filed before
class certification

10 cases
(23%)

7 cases
(54%)

6 cases
(15%)

11 cases
(37%)

No data available

4 cases

0 cases

3 cases

0 cases

180

Class Actions

Case: 15-56423, 09/15/2017, ID: 10582263, DktEntry: 37-2, Page 189 of 208

Table 43: Jury Trials
Caption, Docket No.,
and District

Class Status

Nature of
Suit

Days of
Trial

Hoxworth v. Blinder,
No. 88-285, E.D. Pa.

Certified
(b)(3)

Securities

Melendez v. Illinois
Bell Telephone Co.,
No. 90-5020, N.D.
Ill.

Not certified
(b)(2) & (b)(3)

Jacobs v. Information
Resources, No. 893772, N.D. Ill.

Outcome of Trial

Results on Appeal

1

Default judgment for
plaintiff class

Affirmed; remanded for
settlement

Title VII

8a

Injunction and damages
for individual plaintiff;
partial summary judgment for defendanta

Appeal dismissed

Certifiedb

Contracts

20

For defendant against
plaintiff class

Affirmed

In re Atlantic Financial, No. 89-645,
E.D. Pa.

Certified
(b)(3)

Securities

12

For defendant against
plaintiff class

Appeal dismissed

Ceisler v. First
Pennsylvania Corp.,
No. 89-9234, E.D.
Pa.

Certified
(b)(3)

Securities

11

For defendant against
plaintiff class

Affirmed

Schwartz v. System
Software, No. 911154, N.D. Ill.

Certified
(b)(3)

Securities

10

For defendant against
plaintiff class

Affirmed

Stender v. Lucky
Stores, No. 88-1467,
N.D. Cal.

Certified
(b)(2)&(b)(3)

Title VII

44a

Parties settled after
finding for one subclassa

No appeal

Pucci v. Litwin, No.
88-10923, N.D. Ill.

Not certified
(b)(3)

Securities

4

Parties settled

No appeal

p.
l Cor 2017
utica r 1 ,
race formbReversed 2part; affirBd. of Managers v.
Not certified
Civil rights
4
Directed verdict
t
e in
. Nu
West Chester Areas,
(b)(2)
defendant against
med in part
pte
ert v on Seplaintiff
No. 92-3407, E.D.
amb ved individual
Pa.
in L r i
a
cited b 423rights ch 3
Igo v. County of
Not certified6 Civil
For defendant against
Appeal dismissed
5
Sonoma, No. 90-352, . 15individual plaintiff
No
N.D. Cal.

aCombination bench and jury trial.
bRule 23(b) type not specified.

Appendix C

181

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Table 44: Bench Trials
Caption, Docket No.,
and District

Class Status

Nature of
Suit

Days of
Trial

Outcome of Trial

Results on
Appeal

Packard v. Provident
Nat’l. Bank, No. 915229, E.D. Pa.

Certified
(b)(1)(A)&(B);
(b)(2)

Personal
property
damage

4

For individual
plaintiff after prior
class settlement

Vacated;
remanded for
dismissal

Hedges v. Wauconda
Community, No. 906604, N.D. Ill.

Not certifieda

Civil rights

2

For individual
plaintiff

Vacated in part;
remanded

Dowling v. Commonwealth of Pennsylvania, No. 887568, E.D. Pa.

Certified
(b)(2)

Civil rights

20

For defendant
against plaintiff
class and individual plaintiff

No appeal

Berndt v. Budget
Rent-A-Car, No. 918294, N.D. Ill.

Not certifieda

Civil rights

5

For defendant
against individual
plaintiff

No appeal

Williams v. Cordis
Corp., No. 91-484,
S.D. Fla.

Not certified
(b)(3)

Employee
Retirement
Income
Security Act
(ERISA)

3

For defendant
against individual
plaintiff

No appeal

.
Co p
lAffirmed r 2017
Mateo v. M/S KISO,
Not certified
Personal
NA
For defendant tica
2,
aceu
No. 90-2357, N.D.
(b)(1),(2) & (3)
injury
against individual
utrplaintiff tember 1
Cal.
v. N
bert 8 on Sep Appeal dismissed
am
Merrill Drydock v.
Parties settled
Not certifiedb
LContracts
ed (appeal on damLongkeel, No. 90(b)(3)
ed in 3 archiv
cit
2238, S.D. Fla.
ages)
5642
. 15Buttino v. FBI, No. o
Civil rights
3
Parties settled after
No appeal
N Certified
90-1639, N.D. Cal.
(b)(2)
finding for plaintiff
on liability

Note: NA = not available.
a Rule 23(b) type not specified.
bMotion for certification of defendant class denied.

182

Class Actions

Case: 15-56423, 09/15/2017, ID: 10582263, DktEntry: 37-2, Page 191 of 208

Table 45: Means and Medians for Fee Awards as Percentage of Gross Settlement
Costs in Certified Cases with Court-Approved Settlements Providing No Net
Monetary Distribution to Class
No Net Monetary
Distribution to Class

E.D. Pa.
(n = 16)

S.D. Fla.
(n = 2)

N.D. Ill.
(n = 16)

N.D. Cal.
(n = 4)

Fee awards as percentage of
gross settlement costs:
Mean

96%

88%

91%

80%

Median

100%

88%

98%

100%

Maximum

100%

100%

100%

100%

Minimum

63%

77%

50%

21%

Fee awards:
Mean award

$911,250

$171,948

$351,638

$1,826,288

$86,002

$171,948

$60,000

$1,676,076

Gross settlement costs:
Mean amount

Median award

$915,812

$197,500

$357,566

$1,877,538

Median amount

$101,000

$197,500

$80,197

$1,676,076

Note: This table shows the thirty-eight cases where the only monetary distribution was for payments to class representatives, attorneys’ fees, or administrative expenses. In addition to these thirty-eight cases, in fourteen certified
cases (seven, one, four, two cases in the four districts, respectively), there was no record of a fee request or a fee
award and court-approved settlements provided no net monetary distribution to the class. “Net monetary distribution” is net of attorneys’ fees and administrative expenses. “Fee award” equals the total amount of fees awarded to
plaintiffs’ counsel, excluding sanctions and out-of-pocket expenses. “Gross settlement costs” include the following
payments by defendants to fund the settlement where applicable: payments to class representatives, attorneys’ fees
and expenses, and administrative costs of the settlement such as notice costs.

p.
l Cor 2017
,
utica
race mber 12
ut
v. N Septe
bert
n
Lam
ed o
ed in 3 archiv
cit
5642
. 15o

N

Appendix C

183

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Table 46: Certified, Settled (b)(3) Classes with No Monetary Distribution to the Class
Caption, Docket No.,
and District

Class Definition

No. of
Notices Sent

Total Award
to Class
Representatives

Nonmonetary Relief

Attorneys’
Fee Award
(Method)

Brownell v. State Farm
Mutual Auto Ins., No.
90-2224 (E.D. Pa. filed
Mar. 29, 1990).

All insureds who
submitted a
medical payment
claim for personal injuries

1.4 M

None indicated

Defendant agreed (1) not to use
written criteria with respect to the
duration, frequency, cost, and type of
treatment without disclosing such
criteria; and (2) not to compensate
peer reviewers on a percentage or
contingency fee basis

$225,000
(stipulated)

Assad v. Hibbard
Brown & Co., No. 907420 (E.D. Pa. filed
Nov. 20, 1990).

All who purchased or sold
Children’s
Workshop
Limited securities through
defendant

Unknown

$6,000

Class members who file claims are to
receive certificates of monetary credits to be applied to future transactions
with defendant

$50,000
(method not
specified;
$110,000
requested)

The Lindner Fund, Inc.
v. Pollock, No. 91-6901
(E.D. Pa. filed Nov. 4,
1991).

All purchasers of
defendant’s
common stock
during class
period

Unknown

None indicated

Settlement stated that plaintiffs’
counsel reviewed the prospectuses
and, based on discovery, stated that
there is no good faith basis for asserting that the prospectuses contain
any false or misleading statement or
omission

$225,000
(stipulated)

Cohen v. Alan Bush
Brokerage Co., No. 858018 (S.D. Fla. filed
Jan. 10, 1985).

Purchasers of
common stock of
Comterm during
class period

305

$8,000

Coupons of a total estimated value of
$1 million representing a credit for up
to 60% of standard commission rates
for common stock trading on an
agency basis

$168,894
(stipulated
up to
$420,000;
award
contingent
on number
of claims)

Rodriquez v. Township
of Dekalb, No. 8220190 (N.D. Ill. filed
Nov. 10, 1982).

All applicants for
General Assistance (a local
welfare program)

Unknown
(notice by
posting)

$750

Injunction that all local government
administrators adopt and consistently
apply written General Assistance
standards, maintained in a publicly
available manual

$25,000
(method not
specified)

p.
l Cor 2017
,
utica
race mber 12
ut
te
v. N
bert None indi-n Sep with a face value of $1,000 $9.6 M
Cherkas v. General
Purchasers and am M
5.7
o Certificates
L
ived
Motors Corp., No 92owners of in
specated
toward the purchase of a new GM
(stipulated)
cited GM23 arch
6450 (E.D. Pa. filed
cific full-size
pick-up truck (Notes: personal injury
4
Nov. 9, 1992).a
pick-up56 or
trucks
claims were not released; settlement
. 15- cab
vacated on appeal)
o chassis
N
models

(cont.)

184

Class Actions

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Table 46: Certified, Settled (b)(3) Classes with No Monetary Distribution to the Class
(continued)
Caption, Docket No.,
and District

Class Definition

No. of
Notices Sent

Total Award
to Class
Representatives

Nonmonetary Relief

Attorneys’
Fee Award
(Method)

Harris v. DeRobertis,
No. 86-5094 (N.D. Ill.
filed July 14, 1986).

All inmates of
Cellhouse BWest, Stateville
Correctional
Center, from
1/8/92 to 1/11/92

Unknown

None indicated

Claims procedure established—
inmates could choose $50 payment
without proof of injury or up to
$3,000 for physical or psychological
injuries sustained as a direct result of
the lack of heat in the cellblock

$20,000
(method not
specified)

Schlansky v. EAC
Industries, No. 90-854
(N.D. Ill. filed Feb. 13,
1990).

Purchasers of
EAC securities
during class
period

222

$2,000

40,000 shares of common stock and
370,000 warrants to buy an issue of
stock at $4 a share during a five-year
period

$200,000
plus 10,000
shares and
30,000
warrants
(stipulated)

Aitken v. Fleet Mortgage, No. 90-3708
(N.D. Ill. filed June 28,
1990).

Residential real
estate mortgagors with tax and
insurance
escrows computed by a
particular
method during
the past year

1.58 M

$12,000

Rebates to be paid to current and past
mortgage holders using a set formula

$1.35 M
(stipulated,
based on
percentage
of recovery)

Koerber v. S. C. Johnson & Sons, No. 9320267 (N.D. Ill. filed
Oct. 6, 1993).

All direct and
indirect purchasers of Raid or
Raid Max during
class period

2,418

None indicated

(1) Requiring the defendant Bayer to
affirmatively offer a license for
Cyfluthrin to all of defendant’s competitors on nondiscriminatory terms;
(2) provide $1.4 million in promotional benefits to direct purchasers
and $6.6 million to indirect
(consumer) purchasers

$2.5 M
(stipulated)

McKenna v. Sears
Roebuck & Co., No.
92-2227 (N.D. Cal. filed
June 12, 1992).

All purchasers of
auto repairs from
any Sears Center
during class
period of more
than four years

1M

None indicated

(1) Enforcing its policy of satisfaction
guaranteed or your money back and
(2) establishing a method of distributing $50 coupons toward the purchase of brake calipers, coil springs,
master cylinder, or idle arm upon
showing proof of prior purchase of
such an item

$3 M
(stipulated)

Wesley v. GM Acceptance Corp., No. 913368 (N.D. Ill. filed
May 31, 1991).

p.
l Cor 2017
ica
ceut
12,
raRecalculation ofbertermination $127,542
Illinois GMAC
848
$3,428 ut
lease
m
v. N Septean actuarial basis for post- (lodestar;
auto lessees who
charges on
bert
n settlement terminations; for
terminated a
$150,000
Lam
ed o tlement terminations, choicepreset- requested)
lease earlyiand
of $80
ed n 3 archiv
t
cash or $300 applied to a new conciwere assessed 2
termination fees
sumer lease within a year of the
564
settlement
. 15-

No

Note: M = Millions.
aThe General Motors Pick-Up Truck Litigation (55 F.3d 768 (3d Cir.), cert. denied, 116 S. Ct. 88 (1995)).

Appendix C

185

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Table 47: Injunctive Relief in Certified (b)(2) Cases Providing No Net Monetary
Distribution to Class
Caption, Docket No., and District

Injunctive Relief

Fee Award

Bonsall Village v. Patterson, No. 90457, E.D. Pa.

Modifying a township’s zoning and development plans, encouraging
development of an area occupied primarily by minorities

$140,000

Bozzi v. Sullivan, No. 90-2580, E.D.
Pa.

Readjudicating claims for widow, widower, survivor and disability
benefits using appropriate regulations

$167,500

Packard v. Provident Nat’l Bank, No.
91-5229, E.D. Pa.

Establishing a grievance-arbitration procedure allowing class members to
challenge a bank’s “sweep fees” applied to investment accounts

$90,000

Avery v. City of Philadelphia, No. 927024, E.D. Pa.

Replacing the psychological examination process for police officer applicants, giving class members an opportunity for psychological reexamination

$49,000

Williams v. Philadelphia Housing
Authority, No. 92-7072, E.D. Pa.

Establishing a housing authority’s policy that applicants will not be determined ineligible for Section 8 housing solely on the basis of a related
debt to the housing authority unless that debt is the legal responsibility of
the applicant; providing hearing/review procedures for applicants who
disagree with authority’s findings

$20,558

Felix v. Sullivan, No. 92-7376, E.D. Pa. Changing the services offered under pharmaceutical, dental, and other
medical plans for all state residents who receive medical assistance
benefits

$3,997

Castaneda v. Greyhound Retirement
Refraining from denying claims for return of individual contributions to a
and Disability Plan, No. 88-4184, N.D. pension plan
Ill.

$75,000

Blum v. Icul Service Corp., No. 934399, N.D. Ill.

Agreeing that no letter shall be sent threatening consequences for failure
to pay a debt before the 30-day validation period during which the alleged
debtor may challenge the claim

$10,000

Hiestand v. Schillerstrom, No. 936657, N.D. Ill.

Agreeing to modify defendant’s collection letter so that no letter is sent
demanding payment until after the applicable validation period has expired

$5,500

p.
l Coar 2017
a
Brooks v. Philadelphia Housing
Requiring a housing authority to rewire certain housing ic and install
ceutunitsber 12, $6,624
Authority, No. 93-232, E.D. Pa.
separate meter for common area electrictra
service
v. Nu Septem
Keith v. Daley, No. 84-5602, N.D. Ill. Entering a consent ert (1) that allows the state to regulate abortions
decree
$224,810
b
and (2) that protects women’s d o choose an abortion and receive
Lam iveright ton
in planning services
cited family23 arch
564
Bogard v. Duffy, No. 88-2414, N.D. Ill. Improving treatment resources and placement opportunities for develop$682,681
. 15- mentally disabled Medicaid recipients
No

Buttino v. FBI, No. 90-1639, N.D. Cal. Adopting Federal Bureau of Investigation policy that “sexual orientation
or preference may not be considered as a basis for a negative factor in
determining one’s suitability for employment”

186

$53,000

Class Actions

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Table 48: Donations to Charitable or Public Interest Organizations in Certified Cases
with Court Approved Settlements
Caption, Docket
No., and District

Distribution for Charitable Purposes

N.D. Ill.
M&M v. Chicago
Bd. Options, No.
88-02139

Cy pres grants to:
Chicago-Kent College of Law—$14,000;
DePaul Univ. Law School—$35,000;
John Marshall Law School—$35,000;
Public Interest Law Initiative—$10,500;
Illinois Institute of Technology—$20,000;
Loyola Univ. of Chicago—$19,000.

In re Clozapine AntiTrust Litigation, No.
91-2431

(1) Discount credits with a value of $3 million to be used by mental health agencies of thirty-four states to treat patients who do not
otherwise qualify for Medicaid benefits for therapy using the drug
Clozapine;
(2) additional $3 million to the National Organization for Rare
Diseases (NORD) for treating new Clozaril patients not otherwise
qualified for Medicaid reimbursement; and
(3) a 15% rebate (to be distributed through NORD) for purchases,
over a two-year period, of the drug Clozaril by patients on Social
Security Disability Income.

p.
l Cor 2017
a
,
eutic
In re Scouring Pads, $150,000 to Chicago Bar Foundation for specified c
on
ra programsmber 12
ut
No. 93-6594
domestic abuse, juvenile justice, and.tutoring/mentoring.e
v N Sept
bert
n
Lam
ed o
N.D. Cal.
ed in 3 archiv
cit
642
Lucky Stores No.
A specified donation to a nonprofit organization in a Title VII
15-5
. employment discrimination case.
88-01467
No
In re G.E. Energy
Choice Light Bulb
Consumer Litig.,
No. 92-4447

Appendix C

Any money remaining in a rebate and coupon settlement fund to
an unspecified charity.

187

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Table 49: Reversals and Remands in Cases with Previously Certified Class
Cherkas v.
General
Motors
Corp., Case
No.
92-06450,
E.D. Pa.

Packard v.
Provident
Nat’l. Bank,
Case No.
91-05229,
E.D. Pa.

Berman v.
Int’l Controls Corp.,
Case No.
88-06206,
S.D. Fla.

Bennett v.
Bombela,
Case No.
83-00480,
N.D. Ill.

Harris v.
DeRobertis,
Case No.
86-05094,
N.D. Ill.

Castaneda v.
Greyhound
Retirement
and Disability Plan,
Case No.
88-04184,
N.D. Ill.

Untermeyer
v. Margolis,
No. 87-5491,
Case No.
87-05491,
N.D. Cal.

Issues on
appeal

Certification of
settlement
class; settlement approval; class
counsel fees

Bench trial
award of
punitive
damages for
individual
plaintiff after
class settlement

Summary
judgment for
defendants

Second of
two summary judgments for
defendants a

Case dismissal for
failure to
state a claim

Summary
judgment on
liability;
declaratory
judgment for
plaintiff class

Summary
judgment for
defendants

Appeal filed
by

Objecting
class members

Defendants

Plaintiffs

Plaintiffs

Plaintiffs

Defendants

Plaintiffs

Outcome of
appeal

Vacated;
remanded

Vacated;
remanded
for case
dismissal for
lack of
subject
matter
jurisdiction

Reversed in
part; vacated
in part

Reversed;
remanded

Reversed;
remanded

Reversed
summary
judgment;
remanded

Affirmed in
part; reversed in
part; remanded with
respect to
claims
against
auditors
Pendingb

p.
l Cor 2017
,
utica
race mber 12
ut
te
v. N
bert Court- n Sep
Eventual
Pendingb
Case disCourtCourtCourtam ved o approved approved
outcome of
missed L approved i
approved
in classrsettle- class settle- class settle- class settlec
case
cited 423 ament h ment
ment
ment
56
. 15No
aPrior to class certification, the court of appeals reversed and remanded the first summary judgment for defendants.
bOn remand after the study’s cutoff date of June 30, 1994.

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Class Actions

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Table 50: Reversals and Remands in Cases with No Class Previously Certified
Bd. of Managers
v. West Chester
Areas, Case #
92-03407, E.D.
Pa.

Baby Neal v.
Casey, Case #
90-02343, E.D.
Pa.

O’Neill v. City of
Philadelphia,
Case #
91-06759, E.D.
Pa.

Cert. ruling
preappeal

Yes (not certified)

Yes (not certified)

Issues on appeal

Directed verdict
for defendants

Appeal filed by
Outcome on
appeal

Class certification after
remand
Eventual outcome of case

Appendix C

Flores v. Carnival Cruise, Case
# 92-02766, S.D.
Fla.

Grant v. U.S.
Parole Comm.,
Case # 9200484, S.D. Fla.

Joaquim v. Royal
Caribbean, Case
# 92- 02767,
S.D. Fla.

Yes (not certified)

No ruling

Yes (not certified)

Yes (not certified)

Denial of class
certification;
partial summary
judgment for
defendants;
stipulated judgment against
named plaintiffs

Appeal #1:
Denial in part of
defendants’
motion for
summary judgment
Appeal #2:
Partial summary
judgment for
defendant

Summary judgment for defendants

Dismissal of case

Dismissal of case

Plaintiffs

Plaintiffs

#1: Defendants
#2: Plaintiffs

Plaintiffs

Plaintiffs

Plaintiffs

Reversed in part;
affirmed in part;
remanded

Reversed; remanded (without
review of partial
summary judgment

#1: Vacated;
remanded for
dismissal of case
#2: Appeal
dismissed

Affirmed in part;
reversed in part;
remanded on
compensatory
claim

Affirmed in part;
reversed in part

Reversed in part;
vacated in part

p.
l Cor 2017 No
No
No
No
No tica
No
,
u
race mber 12
ut
v. N
epte
b rt
Case dismissal
Case dismissal e Case dismissal S Pendingb
Case dismissal
Pendingb
am ved on
L
in
i
cited 423 arch
(cont.)
5-56
1
No.

189

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Table 50: Reversals and Remands in Cases with No Class Previously Certified
(continued)
Bennett v.
Bombela,
Case # 8300480, N.D.
Ill.

Retired
Chicago
Police v. City
of Chicago,
Case # 9000407, N.D.
Ill.

Hedges v.
Wauconda
Community,
Case # 9006604, N.D.
Ill.

Twenty-First
Century v.
Sherwood,
Case # 8705774, N.D.
Cal.

Adesanya v.
West America
Bank, Case #
88-04342,
N.D. Cal.

Miller v. Pacific
Lumber Col,
Case # 8903500, N.D.
Cal.

Vandenbosch
v. Georgia
Pacific Corp.,
Case # 9000389, N.D.
Cal.

Cert. ruling
preappeal

No ruling

Yes (not
certified)

No ruling

No ruling

No ruling

Yes (not certified)

No ruling

Issues on appeal

First of two
summary
judgments for
defendants a

Denial of
motion for
class certification and intervention;
dismissal of
case

Permanent
injunction
against defendants and
nominal
damages for
individual
plaintiffs

Partial summary judgment for
defendants;
denial of
plaintiffs’
summary
judgment
motion

Dismissal of
certain claims

Denial of class
certification;
dismissal of
certain class
representatives;
partial summary
judgment for
defendant;
disqualification
of plaintiffs’
counsel

Summary
judgment for
defendants

Appeal filed by
Outcome on
appeal

Class certification after
remand
Eventual outcome of case

p.
linCor 2017Affirmed in
Reversed;
Affirmed in
Vacated
Reversed;
Reversed
tica
uAffirmed part; , in
remanded
part
injunction and
remanded e part; reversedr 12 remanded part; reversed
rac mbe in part; affirmed in part;
t
(including
damages; Nu
in part;
.
affirmed of
remanded on
remanded
disqualification
remanded
ert v on Septe
b damages
denial of am
of counsel
L class
ed
n
icertification);
iv
cited reversed in arch
3
part;
5642re. 15- manded
o
N
Plaintiffs

Plaintiffs;
intervenors

Defendants

Plaintiffs

Plaintiffs

Plaintiffs

Plaintiffs

Yes

No

No

Yes

No

No

No

Courtapproved class
settlementb

Pendingb

$1 to plaintiffs;
case dismissal

Courtapproved class
settlement

Case dismissal

Case dismissal

Case dismissal
stipulated by
parties

a The second remand after appeal is shown in Table 49.
b On remand after the study’s cutoff date of June 30, 1994.

190

Class Actions

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Table 51: Issues and Dispositions on Appeal in E.D. Pa. Class Actions Terminated
Between July 1, 1992, and June 30, 1994 (n=36 appeals in 31 cases)
No. of Appeals

Appellant

Issue on Appeal

Disposition of Appeal

2

Defendant

Certification of class

1 affirmed; 1 not reviewable

1

Defendant

Default judgment for plaintiff

1 affirmed

1

Defendant

Denial in part of summary judgment

1 vacated, remanded for dismissal

1

Defendant

Denial of arbitration

1 affirmed

1

Defendant

Bench trial judgment for plaintiff

1 vacated, remanded for dismissal

1

Defendant

Motion for stay

1 affirmed

1

Defendant

Preliminary injunction

1 affirmed

1

Defendant

Summary judgment for plaintiff

1 affirmed

1

Defendant

Denial of partial summary judgment

1 appeal dismissed

11

Plaintiff

Dismissal of case

9 affirmed; 2 appeals dismissed

5

Plaintiff

Summary judgment for defendant

3 affirmed; 2 appeals dismissed

3

Plaintiff

Partial summary judgment for defendant

1 affirmed; 1 reversed and remanded; 1 vacated, remanded for
dismissal

p.
l Cor 2017
Plaintiff
Order deeming dismissal motion to be sum- ticappeal dismissed as interlocu1a
mary judgment motion; issue not availableu
tory; 1 ,
race mber 12affirmed
t
ucosts te
N
Plaintiff
Taxation of defendant’s
2 affirmed
rt v. n S
beverdict for defendant ep 1 reversed in part, affirmed in
Plaintiff
Directed
am ved o
in L rc i
part
a of
cited 423 Denial hclass certification
Plaintiff
1 reversed and remanded
-56
Plaintiff
Denial of sanctions
1 appeal dismissed
o. 15

2
2
1
1
1
1

N

Plaintiff

Dismissal of certain claims

1 appeal dismissed

1

Plaintiff

1

Objecting class
members

Verdict for defendant
Certification of classa

1 vacated and remanded

1

Objecting class
members

Award of fees to plaintiff counsela

1 vacated and remanded

1

Objecting class
members

Settlement approvala

1 vacated and remanded

1

Party opposing
class

Issue not available

1 withdrawn

1

Proposed
intervenors

Denial of intervention

1 affirmed

1 appeal dismissed

Note: Some appeals had more than one issue and some cases had more than one appeal.
aGeneral Motors Pick-Up Truck Litigation (55 F.3d 768 (3d Cir.), cert. denied, 116 S. Ct. 88 (1995)).

Appendix C

191

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Table 52: Issues and Dispositions on Appeal in S.D. Fla. Class Actions Terminated
Between July 1, 1992, and June 30, 1994 (n=12 appeals in 11 cases)
No. of Appeals

Appellant

Issue on Appeal

Disposition of Appeal

1

Defendant

Dismissal of case

1 appeal dismissed

1

Defendant

Award of fees to plaintiff counsel

1 affirmed

1

Defendant

Judgment for plaintiff after trial

1 appeal dismissed

5

Plaintiff

Dismissal of case

2 affirmed; 1 affirmed in part,
reversed in part; 1 appeal dismissed; 1 reversed in part, vacated in part

2

Plaintiff

Summary judgment for defendant

1 affirmed in part, reversed in
part; 1 reversed in part, vacated
in part

1

Plaintiff

Award of fees to plaintiff counsel

1 affirmed

1

Non-named
class member

Award of fees to plaintiff counsel

1 appeal dismissed

p.
l Cor 2017
a
,
ut ClassrActions
Table 53: Issues and Dispositions on Appeal in N.D. Ill.ic
race inmbcases)2 Terminated
t
uappealste 39 e 1
Between July 1, 1992, and June 30, 1994v. N
(n=56
ep
bert
am ved on S
L
i
No. of Appeals
Appellantd in
Issue
Disposition of Appeal
cite 423 arch on Appeal
3
Defendant56
Summary judgment for plaintiff
1 affirmed; 1 appeal dismissed;
1 reversed
o. 15
N
2

Defendant

Award of fees to plaintiff counsel

1 remanded for reconsideration;
1 pending

2

Defendant

Judgment for plaintiff

1 affirmed in part, vacated in
part, and remanded; 1 appeal
dismissed

1

Defendant

Petition for writ of mandamus to recuse trial
judge

1 petition denied

1

Defendant

Denial of motion to dissolve preliminary
injunction

1 appeal dismissed

1

Defendant

Judgment for plaintiff

1 affirmed

1

Defendant

Extension of time for filing plaintiff notice of
appeal

1 remanded for settlement

18

Plaintiff

Dismissal of case

10 affirmed; 4 appeals dismissed;
1 reversed and remanded;
1 remanded for settlement;
2 pending
(cont.)

192

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Table 53: Issues and Dispositions on Appeal in N.D. Ill. Class Actions Terminated
Between July 1, 1992, and June 30, 1994 (n=56 appeals in 39 cases) (continued)
No. of Appeals

Appellant

Issue on Appeal

Disposition of Appeal

9

Plaintiff

Summary judgment for defendant

6 affirmed; 1 appeal dismissed;
2 reversed and remanded

7

Plaintiff

Dismissal of certain claims

1 affirmed; 5 appeals dismissed; 1
pending

2

Plaintiff

Verdict for defendant

2 affirmed

2

Plaintiff

Partial summary judgment for defendant

1 appeal dismissed;
1 pending

1

Plaintiff

Denial of class certification

1 affirmed

1

Plaintiff

Denial of plaintiff attorneys’ fees

1 appeal dismissed

1

Plaintiff

Dismissal of third-party complaint

1 affirmed

1

Plaintiff

Sanctions against plaintiff counsel

1 affirmed

1

Plaintiff

Reduction of plaintiff fee request

1 vacated and remanded

1
1

1

1

1 appealp.
dismissed
l Cor 2017
ica 1 affirmed
Plaintiff and
Denial of injunction
2,
eut
proposed
utrac tember 1
v. N Sep
intervenor
bert
on
am class certification
Plaintiff and in L Denial of ived
1 affirmed
ch
ed
proposed
cit
3 ar
intervenor 5642
15Plaintiff
Denial of intervention
1 affirmed
No. and
Plaintiff

Transfer of case

proposed
intervenor
1

Plaintiff and
proposed
intervenor

Summary judgment for defendant

1 affirmed

2

Third-party
defendant

Settlement approval

2 appeals dismissed

1

Third-party
defendant

Denial of motion for reconsideration

1 appeal dismissed

1

Third-party
defendant

Dismissal of third-party defendant’s countercomplaint

1 appeal dismissed

1

Proposed
intervenor–
defendant

Denial of intervention

1 affirmed

Note: Some appeals had more than one issue and some cases had more than one appeal.

Appendix C

193

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Table 54: Issues and Dispositions on Appeal in N.D. Cal. Class Actions Terminated
Between July 1, 1992, and June 30, 1994 (n=34 appeals in 23 cases)
No. of Appeals

Appellant

Issue on Appeal

Disposition of Appeal

2

Defendant

Partial summary judgment for plaintiff

1 affirmed; 1 appeal dismissed

1

Defendant

Preliminary injunction

1 appeal dismissed

1

Defendant

Denial of summary judgment

1 affirmed

10

Plaintiff

Dismissal of case

6 affirmed; 3 appeals dismissed;
1 pending

3

Plaintiff

Summary judgment for defendant

1 affirmed; 1 affirmed in part,
reversed in part, and remanded;
1 reversed in part, affirmed in
part

2

Plaintiff

Partial summary judgment for defendant

1 reversed; 1 reversed and remanded

2

Plaintiff

Judgment for defendant

1 affirmed; 1 appeal dismissed

2

Plaintiff

Denial of motion for reconsideration

1 affirmed in part, reversed in
part, and remanded; 1 appeal
dismissed

Plaintiff

Denial of motion for modification of order

1 appeal dismissed

1

Plaintiff

Denial of motion to disqualify judge

1 appeal dismissed

1

Plaintiff

Denial of motion to vacate dismissal

1 appeal dismissed

1

Plaintiff

Denial of plaintiff attorneys’ fees

1 reversed and remanded

1

Plaintiff

Bench trial judgment for defendant

1 affirmed

1

Plaintiff

Summary judgment for opposing class
members

1 affirmed

1

Plaintiff

Dismissal of certain class representatives

1 remanded

1

Plaintiff

Disqualification of plaintiff counsel

1 affirmed

1

Objecting class
member

Award of fees to plaintiff counsel

1 pending

1

Third-party
defendant

Summary judgment for plaintiff

1 affirmed

p.
l Cor 2017
tic1a 112, in part,
Plaintiff
Dismissal of certain claimsaceu
affirmed; affirmed
r
r
t
reversed
. Nu eptembe in part, and remanded
tv
ber
Plaintiff
Denial
1 appeal dismissed; 1 reversed
on S
Lam of iclass certification
ved
in
ch of injunction
ed
Plaintiff
1 appeal dismissed
cit
3 arDenial
5642 of in forma pauperis application
PlaintiffDenial
1 appeal dismissed
o. 15

2
2
1
1
1

N

Note: Some appeals had more than one issue and some cases had more than one appeal.

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Table 55: Appeals Involving Certification Issues
E.D. Pa.
Case No. 88-00285

E.D. Pa.
Case No.
90-02343

E.D. Pa.
Case No.
92-06450

N.D. Ill.
Case No.
90-00407

N.D. Ill.
Case No.
92-07076

N.D. Cal.
Case No.
89-03500

N.D. Cal.
Case No.
93-03160

Certification
of class;
class settlement;
attorneys’ fee
award

Denial of
motion to
certify class;
summary
judgment for
defendants;
denial of
intervention;
denial of
preliminary
injunction

Denial of
motion to
certify class;
summary
judgment for
defendants

Denial of
motion to
certify class;
partial
summary
judgment for
defendants

Denial of
motion to
certify class;
denial of
injunction

No

No; prior
motion for
1292(b)
certification
was denied

No

No

Objecting
class members

Plaintiffs and
proposed
intervenors

Plaintiff

Plaintiffs

Plaintiffs

Vacated;
remanded

Affirmed in
part
(including
affirmative of
denial of
class certification);
reversed in
part; remanded
Pendingb

Affirmed

Issues on
appeal

Appeal #1:
Certification
of class;
preliminary
injunction

Appeal #2:
Certification
of class;
default
judgment for
plaintiffs

Denial of
motion to
certify class;
partial
summary
judgment for
defendants;
stipulated
order of
judgment
against all
named
plaintiffs on
individual
claims

§1292(b)
certification
for appeal

No

No

No; prior
motion for
1292(b)
certification
was denied

Appeal filed
by

Defendant

Defendant

Plaintiffs

Outcome of
appeal

Injunction
vacated;
certification
decision not
reviewable

Eventual
outcome of
case

.
pReversed;
l Cor remandeda7
, 201
utica
race mber 12
t
. Nu
ert v on Septe
mb
in La rchived
cited 423 a
56
b
See Appeal 5- CourtNo class
No class
o. 1 approved Class cer- Pending
#2
certified;
certified;
N (next class settle- tified on
column)
remand;
case discase disAffirmed

mentb

Reversed;
remanded

case pendingb

missed

missed

Appeal
dismissed

No class
certified;
case dismissed

aCourt of appeals held certification is reviewable in combination with partial summary judgment for defendant, set-

tlement of rest of individual claims, and entry of judgment against all named plaintiffs on their individual claims. Appellate court did not review the trial court’s partial summary judgment decision, but reversed and remanded it because of the reversal of denial of class certification.
bOn remand after the study’s cutoff date of June 30, 1994.

Appendix C

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Table 56: Firms Most Frequently Serving as Lead or Co-Lead Counsel (Number of
Class Action Cases)
Firm

Firm’s Offices

E.D. Pa.
Cases

S.D. Fla.
Cases

N.D. Ill.
Cases

N.D. Cal. Total No.
Cases
of Cases

Chimicles Burt et al. (and
Greenfield & Chimicles)

Los Angeles, Cal.
West Palm Beach, Fla.
Haverford, Pa.

7

4a

0

6

17a

Milberg Weiss

San Diego, Cal.
New York, N.Y.

1

1

0

14

16

Berger & Montague

San Francisco, Cal.
Philadelphia, Pa.

7

2

0

5

14

Lieff Cabraser

San Francisco, Cal.

1

0

0

7

8

Community Legal Services

Philadelphia, Pa.

8

0

0

0

8

Barrack Rodos

San Diego, Cal.
Philadelphia, Pa.

6

0

0

1

7

Stephen F. Gold

Philadelphia, Pa.

5

0

0

0

5

Beeler Schad

Chicago, Ill.

0

0

4

0

4

1
rp. 4
l Co0 2017
Edelman & Combs
Chicago, Ill.
0
0
4
4
,
utica
ra0ce mber 102
Kohn (Nast) Savett
Philadelphia, Pa.
4
0
4
t
. Nu
ert v 0 on S0epte 4
Lawrence Walner & Assoc. Chicago, Ill.
0
4
mb
in La rchived
Note: Some firm names changed after theya
cited 423 were entered on court records. Each consolidation of cases is counted as
one class action case.
-56
aFirm was liaison counsel in two additional cases.
o. 15
N
Cohen, Milstein

196

Washington, D.C.

0

1

2

Class Actions

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Appendix D
Methods
Nature of the Database. The data in this field study report represent a full census of the population of class action cases that were terminated in E.D. Pa., S.D. Fla., N.D. Ill., and N.D. Cal.
between July 1, 1992, and June 30, 1994. Unlike the time study data presented to the committee,358 the field study is not a random sample. It documents all identifiable class action activity
in the four districts in cases terminated during the study period and is a sample only in the sense
of being limited to that time period.
Selection of Courts. The four courts were selected for the field study on the basis of the level
of class action activity shown in the Administrative Office of the U.S. Courts data and on the
rp.
7
l western, midwestern, and
basis of geography. We undertook to study one court in the eastern,Co
utica r the 201
cewere among12, ten courts with the
southern regions of the country and to study courts a
utr that tembe
the regional approach so that we could examine class
most class action cases filed. 359 We chose t v. N
ep
er
actions in different courts, in different circuits, andn S
amb ved o in different local legal cultures. Our purpose
in L
was to study a varietyedapproaches chi by the bench and bar in litigating and adjudicating
cit of 423 ar used
class actions.
5-56
For each case . 1 study, an attorney–researcher examined pleadings, documents, briefs,
o in the
N
orders, affidavits, declarations, and, when available, transcripts. In particular, we looked at rulings on motions to dismiss, motions for summary judgment, all briefs relating to class certification, filings relating to notice and approval of settlement, applications for attorneys’ fees, and
any orders relating to these matters. For certified class actions, we gathered a complete set of the
notices the court approved. These documents are available to researchers who wish to study the
notice process.
Identification and Definition of Class Actions. With each court’s assistance we conducted
various searches for class actions. Our aim was to find all cases with class action allegations in
the complaint or with indications of class action activity in the text of docket entries or published opinions. Because of limited resources available for the study we restricted the time period covered and selected all such cases that had been terminated360 between July 1, 1992, and
358. See Willging et al., supra note 26.
359. We selected the courts before we discovered a substantial undercount of class action activity in the Administrative Office data, as explained below, in this section.
360. We included in the “terminated” category cases that were closed but had issues pending appeal at the time
of our field visit. Our subsequent follow-up on the outcome on appeal determined that, in a few cases, the district
court case has been reopened after remand from the court of appeals. Nevertheless, these reopened cases are in-

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June 30, 1994.361 Cases that were consolidated or otherwise grouped were counted as a single
case. This approach avoids counting cases more than once when the post-consolidation litigation and rulings took place only once. However, for one purpose in the report, to capture the
total number of class action filings, we include the number of cases included in the consolidations (see supra § 1(b)).
Our initial search focused on databases provided on tape by the Administrative Office of the
U.S. Courts for the five years prior to August 1994. An initial visit to two courts focused on
cases identified in the Administrative Office data. In both jurisdictions, a subsequent LEXIS
search of published opinions uncovered a large number of class action opinions in cases that
were not identified as class actions in the Administrative Office database.
Discovering these cases led us to ask both courts to conduct three searches of their electronic
records: one for the class action “flag” that is entered when a case is originally docketed; another for specific “event codes,” such as the filing of a motion to certify a class, that identify
class action activity; and a final search of the court’s electronic docketing system, looking for the
word “class.”362 These searches uncovered the majority of the cases in this study. 363 In Table
57 cases in the column “class action allegation” were the only cases identified in the Administrative Office data as class actions. The class action status of all other cases that were eventually
included in our study had been recorded in the Administrative Office database as “missing.” As
Table 57 shows, Administrative Office statistics identified from one-fifth to one-half of the class
p.
actions in the four courts.
7
l Cor

, 201
utica
race mber 12
t
. Nu
Table 57: Class Action Status in Administrative Septe
ert v on Office Data for All Class Actions
mb
Terminated Between July 1, 1992, andved 30, 1994
in La rchi June
ed
a
citE.D. Pa. 423 S.D. Fla.
N.D. Ill.
N.D. Cal.
56
Class Action Status 15- 117)
(n = 72)
(n = 117)
(n = 102)
. (n =
No
Class Action
22%
51%
35%
45%
Allegation

(26 cases)

(37 cases)

(41 cases)

(46 cases)

Missing Data

78%
(91 cases)

49%
(35 cases)

65%
(76 cases)

55%
(56 cases)

cluded in the study because they were closed at the time of our field visit.
361. We chose this period because the advisory committee expressed an interest in recent class action activity,
and July 1, 1992, to June 30, 1994, was the most recent period for which data were available. Two years of data represents the longest continuous period that could be studied with the resources available.
362. After identifying a case that appeared to be a class action, an attorney on the research team examined the
docket sheet and file. If a case did not include a class action allegation, class certification activity, or class settlement
activity, we excluded it from the study.
363. There may be class action cases that would escape identification by these searches, but they would be cases
in which there was no detectable docket entry identifying class action activity and in which the initial complaint and
cover sheet did not identify the case as a class action. Presumably, such cases, if they exist, would be rare, would have
no or negligible class action activity, and would add little to the reader’s understanding of class action litigation.

198

Class Actions

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Those data lead to the conclusion that information on class actions reported in the Administrative Office database substantially undercounted class action activity during the study period. Data in our time study report 364 indicated that a substantial, but smaller, undercount occurred during the 1987–1989 time study period. Data from the Federal Judicial Center time
study sample and from the Federal Judicial Center study of four courts support the conclusion
that in the recent past there were no reliable national data on the number of class action filings
and terminations in the federal courts.365
The time study. In the Federal Judicial Center’s district court time study, district and magistrate judges maintained records of the time they spent on a random sample of 8,320 civil cases
filed in 86 U.S. district courts between November 1987 and January 1990. Fifty-one of those
cases (0.61%, an incidence of 61 class actions for every 10,000 cases filed) contained class action
allegations. A case was defined as a class action either by reference to the case statistics maintained by the Administrative Office (36, or 71%) or, where there was no class action indicator in
the Administrative Office statistics, to class action activity in a judge’s time records (15, or
29%).366 For all 51 time study cases, we reviewed docket sheets and case file documents of the
type we reviewed in the four study districts, as described above.
Though informative, the time study class action data need to be used with caution. The time
study data should be read as descriptive of a small national random sample of class actions. In
total, the data are certainly more than anecdotal evidence; however, in many instances, infor.
mation on important class action activity was available only for a small orp of cases per disl C number017
a
trict and these instances should be viewed as anecdotalceutic The12, 2
time study
a examples. nation-wide.367 data should
raction activityer
ut
b
not be thought of as representing the universe.of class
v N comprisetem
Termination cohort limits. The cases tstudied n Sep what is often called a termination
ber
am
ed o
cohort, consisting of all casesL terminated within a fixed time. Fluctuations in case filing
that
ed in a3 archiv cohort. For example, if the rate of filing of securicit
rates affect the composition 42 termination
of
5-56 increased abruptly in 1991, terminated securities class actions in
ties class actions . 1 to have
was
No
our cohort might include more cases of shorter duration (e.g., perhaps more settlements than
364. See Willging et al., supra note 26, at 1, 4–5. Subsequent to the preliminary time study report, our further
analysis of the time study data revealed more evidence of a serious undercount. In February 1995 we examined the
published Administrative Office statistics for the period of the time study. Between January 1, 1988, and December
31, 1989, the core period of the time study, Administrative Office data indicate that there were 461,050 cases filed in
all of the federal district courts and that 1,069 of these, or 0.23%, were recorded as being class actions. That incidence
rate—23 class actions per 10,000 cases—is far lower than the rate of 61 per 10,000 cases found in the time study. See
Willging et al., supra note 27, at 8 n.4.
365. In January 1995 the Administrative Office of the United States Courts began reminding U.S. district courts,
on a monthly basis, of the correct procedures for reporting filing and termination data related to class action cases.
To the extent that these efforts have resulted in a change in reporting from the courts, beginning in 1995 the reported
statistics will more accurately reflect class actions in the courts. For further discussion and documentation of the lack
of reliable national data on class action activity, see Willging et al., supra note 26, at 4–5.
366. One case identified in the Administrative Office data as a class action had no indication on the docket sheet
or in the documents in the file that any class action allegations were involved. That case was eliminated from the sample discussed in Willging et al., supra note 26.
367. The time study data as a whole, of course, are fully suitable to their intended purpose of assigning case
weights to various types of cases that were observed with much greater frequency than class actions. There is no
separate case weight for class actions.

Appendix D

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trials) than if the filing pattern had been steady. We are unable to examine the filing patterns of
class actions because, as discussed above, there are no reliable national data on class action
filings. But we do know that the filing pattern for all securities cases (class actions and nonclass
actions) has been declining steadily at a rate of about 10% a year during the 1990s. And, securities class actions were the largest single nature of suit in our study, comprising 20% to 35% of
the cases in the four districts. Other changes in filing patterns may have affected our cohort of
cases. If such fluctuations have occurred, they would likely create an error of a few percentage
points. Accordingly, our results—particularly on the time from filing to termination, settlement,
or ruling on motions—should be viewed as approximations with a margin of error.
Limits of the data. The field study data should be read as descriptive of class action activity
solely in the districts and the time period studied. We present these data as a systematic description of such activity, as four snapshots of courts selected because of their level of class action activity and their differences. Activity in one district cannot be generalized to other districts
nor, of course, to a universe of class action activity nation-wide.

p.
l Cor 2017
,
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ut
v. N Septe
bert
n
Lam
ed o
ed in 3 archiv
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5642
. 15o

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200

Class Actions