Complex Litigation: Defendant Classes

Abstract

Commentary and analysis of the ability of litigants to create a defendant’s class under Federal Rule of Civil Procedure 23. Not only does Rule 23 permit defendant classes, but defendant classes also raise challenging procedural issues as well as interesting strategic possibilities. Although defendant classes are less common than plaintiff classes, courts will certify defendant classes if the Rule 23 class certification requirements are satisfied. When a court certifies both a plaintiff and defendant classes, this creates a bilateral class action. Historically, defendant classes were more prevalent in the English chancery courts during the 17th and 18th centuries. A proposed defendant class must satisfy the same Rule 23(a) certification requirements as a plaintiff class, including that the defendant class may be maintained under one of the Rule 23(b) class categories. Satisfying the requirements for class certification typically are more complex than for plaintiff classes. In particular, it often is more difficult to designate and adequate or typical class representative to represent the class, as multiple defendants may have conflicting interests. The article discusses the leading case of LaMar v. H & B Novelty & Loan Co., 489 F.2d 461 (9th Cir. 1973), refusing to certify a defendant class, as well as federal courts that have permitted defendant classes under Rule 23(b)(2). Defendant classes sometimes may be deployed strategically to assert counterclaims against the plaintiff class.

Keywords: Rule 23, Federal Rule of Civil Procedure 23, defendant class, LaMar v. H & B Novelty Loan Co., class action counterclaims, Rule 23(b)(2)