Parties or Not?: The Status of Absent Class Members in Rule 23 Class Actions

*J.D., University of Virginia School of Law, 2022. I am sincerely grateful to Professor Caleb Nelson who drew my attention to Judge Wood’s article and guided my research on this Note. I would also like to thank Patrick Dever, who gave invaluable feedback on a first draft, and the editors of the Virginia Law Review who brought this Note to print, particularly Holly Bard, Shannon Bader, and Sydney Eisenberg. Show More

When should absent class members—individuals who are bound by and share in a class recovery but who are not active participants in the litigation—be treated as “parties” in Rule 23 class actions? This simple question has confused courts and litigants almost since the initial conception of the class action device. In 1983, then-Professor Diane Wood introduced the joinder and representational models to classify approaches to this question in her now-seminal article. The joinder model treats absent class members as parties to the litigation at all times, while the representational model presumes only the named plaintiffs are parties to the case itself. At various moments, the Supreme Court has expressed exclusive support for the representational approach, exclusive support for the joinder approach, and a preference for a balanced approach which treats absent class members as parties for some procedural issues if not for others. Through the lens of the joinder and representational models, this Note clarifies the decisions courts are making when assessing the procedural rights of absent class members, and ultimately suggests that the status of absent class members should depend on the procedural right being asserted.

Introduction

When a lawsuit proceeds as a class action, how should we think about the “absent” members of the class—people who might share in the relief that the court awards, and who are also at risk of being bound by an adverse judgment, but who are not named and are not actively participating in the suit? In a classic 1983 article, then-Professor (now Judge) Diane Wood argued that courts had unknowingly been using two different approaches, which she called the “joinder” model and the “representational” model.¹ 1.Diane Wood Hutchinson, Class Actions: Joinder or Representational Device?, 1983 Sup. Ct. Rev. 459, 459. Judge Wood now serves as a senior judge on the U.S. Court of Appeals for the Seventh Circuit.Show More Broadly, the joinder model treats all members of the class as full parties to the litigation, whether or not they are named and actively participating.² 2.Id.Show More On that view, the court would need to consider the absent members of the class when answering threshold questions about jurisdiction or venue, and the absent members of the class would also have all the rights and obligations of parties as the case proceeds.³ 3.Id.Show More By contrast, the representational model treats only the named members of the class as parties to the litigation for procedural purposes; the named members are considered to be representing absent class members throughout the litigation, but the absent class members whom they represent are not actually parties to the case.⁴ 4.Id.at 460.Show More

For a simplified example of the distinction, imagine a plaintiff class action in which the named plaintiffs are all citizens of State A, but some of the absent class members are citizens of State B. If the defendant is a citizen of State B, then whether the suit qualifies for diversity jurisdiction under 28 U.S.C. § 1332(a) depends on whether the absent class members are regarded as additional plaintiffs. The joinder model would deny diversity jurisdiction in this case because some of the plaintiffs are citizens of the same state as the defendant, while the representational model would grant diversity jurisdiction (assuming that the amount in controversy requirement is satisfied) because the representational model is only concerned with the named parties.

The models can produce equally stark differences on questions that might arise as the suit proceeds. For example, in a major consumer protection lawsuit against the at-home exercise company Peloton, the joinder model would permit the district court to allow all forms of discovery against its, at the time, estimated 3.1 million subscribers to the platform,⁵ 5.Lauren Thomas, Peloton Thinks It Can Grow to 100 Million Subscribers. Here’s How, CNBC (Sept. 15, 2020, 2:29 PM), https://www.cnbc.com/2020/09/15/peloton-thinks-it-can-grow-to-100-million-subscribers-heres-how.html [https://perma.cc/D2VF-3FZ4].Show More while the representational model would only permit interrogatories or requests for admission to be levied against the named class members.⁶ 6.Cf. Fishon v. Peloton Interactive, Inc., 336 F.R.D. 67, 74 (S.D.N.Y. 2020) (permitting limited deposition of absent putative class members). Some discovery devices, such as requests for admissions and interrogatories, can only be directed at parties to the lawsuit. See, e.g., Fed. R. Civ. P. 33 (interrogatories); Fed. R. Civ. P. 36 (requests for admissions). Parties can aim other discovery mechanisms, such as depositions or subpoenas at parties and non-parties alike. See, e.g., Fed. R. Civ. P. 30 (oral depositions); Fed. R. Civ. P. 45 (subpoenas).Show More Or, the joinder model would require all absent class members to consent to adjudication by a magistrate rather than a district court judge, while the representational model would only require the named plaintiffs to consent.⁷ 7.See, e.g., Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 180–81 (3d Cir. 2012) (holding that unnamed class members are not parties for purposes of consenting to adjudication by a magistrate judge).Show More These different treatments for absent class members can have major practical impacts on class action litigation in whether suits can be brought in federal court and, when they are, what absent class members are required to do.

Judge Wood herself advocated for using the representational model. In her view, applying that model across the board would best promote two goals of class actions: to provide efficiency for litigants and to act as a “private attorney-general” enforcement mechanism.⁸ 8.Wood Hutchinson, supranote 1, at 480.Show More Since the publication of her article, however, the Supreme Court has struck different notes.⁹ 9.Even before Judge Wood’s article, Justice Stevens’s concurring opinion in Deposit Guaranty National Bank v. Roper noted that “[t]he status of unnamed members of an uncertified class has always been difficult to define accurately.” 445 U.S. 326, 343 n.3 (1980) (Stevens, J., concurring). In Roper, Justice Stevens suggested that absent parties be conceived of as parties for some procedural purposes even if they are not for others. Id. Justice Powell’s dissent strongly disagreed with this statement, arguing that Justice Stevens cited no authority to support his position and provided no explanation “as to how a court is to determine when these unidentified ‘parties’ are present.” Id.at 358 n.21 (Powell, J., dissenting). This Note attempts to propose a solution to Justice Powell’s concern.Show More For example, in Martin v. Wilks, the Supreme Court presumed the representational model applied, labeling the class action as a “certain limited circumstance[]” where “a person, although not a party, has his interests adequately represented by someone with the same interests who is a party.”¹⁰ 10.490 U.S. 755, 762 n.2 (1989); see also Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (agreeing with this characterization of class actions).Show More By contrast, Justice Scalia’s plurality opinion in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. described the class action as a straightforward “joinder” device that “merely enables a federal court to adjudicate claims of multiple parties at once, instead of in separate suits.”¹¹ 11.559 U.S. 393, 408 (2010) (plurality opinion).Show More And, in 2002, Justice O’Connor’s majority opinion in Devlin v. Scardelletti asserted that “[n]onnamed class members . . . may be parties for some purposes and not for others.”¹² 12.536 U.S. 1, 9–10 (2002). One might find it curious that Justice Scalia wrote the dissent in Devlin arguing for a representational approach as he would later write the majority opinion in Shady Grove, which called a class action a species of “traditional joinder.” Shady Grove, 559 U.S. at 408. In dissent, he wrote that the majority’s decision to permit both the joinder and the representational model “abandons the bright-line rule that only those persons named as such are parties to a judgment, in favor of a vague inquiry ‘based on context.’” Devlin, 536 U.S. at 20 (Scalia, J., dissenting).Show More

How courts should characterize absent class members bears on many continuing controversies. For example, after the Court’s decision in Bristol-Myers Squibb Co. v. Superior Court of California,¹³ 13.137 S. Ct. 1773 (2017).Show More most lower courts have followed Devlin’s approach to confirm that, even if absent class members are parties for some purposes, they are not parties necessary to determine whether the court has personal jurisdiction over the defendant.¹⁴ 14.See, e.g., Mussat v. IQVIA, Inc., 953 F.3d 441, 447–48 (7th Cir. 2020); Al Haj v. Pfizer Inc., 338 F. Supp. 3d 815, 820 (N.D. Ill. 2018). Not all courts have interpreted Bristol-Myers Squibb in this way. For more, see infra Subsection II.A.2.Show More As recently as June 2021, however, the Court seemed to follow Justice Scalia’s characterization of the class as a “joinder” device when it concluded that all absent class members need to demonstrate standing in order to recover damages.¹⁵ 15.TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207–08 (2021). Notably, the Court reserved judgment on “whether every class member must demonstrate standing before a court certifies a class.” Id. at 2208 n.4. For further discussion on this question, and whether this actually implicates the representational model, see infraSubsection II.A.3.Show More It follows that under what circumstances absent class members should be considered parties remains a live issue almost forty years after Judge Wood’s initial article. The Court itself has not offered consistent guidance on the status of absent class members, and its recent decisions on personal jurisdiction and standing have acutely raised these questions for lower courts.¹⁶ 16.SeeinfraSubsection II.A.2 (personal jurisdiction); infra Subsection II.A.3 (standing).Show More The time is right to both clarify the choice lower courts will be making in these determinations and to suggest a new path forward considering the changes from the past forty years.

This Note identifies the contours of the question for various procedural doctrines, and, ultimately, suggests that Devlin’s approach of considering absent class members as parties for some purposes but not for others is preferable to a strict joinder or representational approach. Judge Wood’s article, which advocated for a more rule-like approach to the representational model, focused primarily on the jurisdiction and justiciability doctrines that govern absent class members’ access to federal courts.¹⁷ 17.See Wood Hutchinson, supra note 1, at 478 (“The characteristics that would lead a court to treat a class action as a glorified joinder device or as a true representational action are different. Those characteristics are ‘procedural’ in this sense: They establish one’s right to sue in a federal court on the substantive claim, rather than in a state court.”).Show More When broadening the scope of procedural doctrines that affect absent class members during litigation, such as discovery or counterclaims, this Note contends that a more balanced approach would better vindicate the efficiency and private attorney general functions of the class action device. Writing now with the benefit of Devlin’s statement that absent class members may be treated differently for different purposes, a less rule-like approach is not only preferable but possible.

Part I of this Note explains in detail the differences between the representational and joinder models and Judge Wood’s reasons for expressing a preference for the representational model. Part II surveys post-1983 doctrine in certain procedural issues implicating the joinder and representational models in class actions. While, for the most part, courts have continued to use the representational model to conceive of absent class members, there are some areas in which Congress and the courts have shifted towards a more joinder-based approach. Part III evaluates why Devlin’s approach of treating absent class members differently based on context is preferable to following the representational model in all areas. Ultimately, it suggests that the joinder model is valuable for some litigation conduct but that the representational model continues to be a valuable way to conceive of access to federal courts for class action procedures.

1.  Diane Wood Hutchinson, Class Actions: Joinder or Representational Device?, 1983
   

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3.  Id. ↑
4.  Id. at 460. ↑
5.  Lauren Thomas, Peloton Thinks It Can Grow to 100 Million Subscribers. Here’s How, CNBC (Sept. 15, 2020, 2:29 PM), https://www.cnbc.com/2020/09/15/peloton-thinks-it-can-grow-to-100-million-subscribers-heres-how.html [https://perma.cc/D2VF-3FZ4]. ↑
6.  Cf. Fishon v. Peloton Interactive, Inc., 336 F.R.D. 67, 74 (S.D.N.Y. 2020) (permitting limited deposition of absent putative class members). Some discovery devices, such as requests for admissions and interrogatories, can only be directed at parties to the lawsuit. See, e.g.,
   

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7.  See, e.g., Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 180–81 (3d Cir. 2012) (holding that unnamed class members are not parties for purposes of consenting to adjudication by a magistrate judge). ↑
8.  Wood Hutchinson, supra note 1, at 480. ↑
9.  Even before Judge Wood’s article, Justice Stevens’s concurring opinion in Deposit Guaranty National Bank v. Roper noted that “[t]he status of unnamed members of an uncertified class has always been difficult to define accurately.” 445 U.S. 326, 343 n.3 (1980) (Stevens, J., concurring). In Roper, Justice Stevens suggested that absent parties be conceived of as parties for some procedural purposes even if they are not for others. Id. Justice Powell’s dissent strongly disagreed with this statement, arguing that Justice Stevens cited no authority to support his position and provided no explanation “as to how a court is to determine when these unidentified ‘parties’ are present.” Id. at 358 n.21 (Powell, J., dissenting). This Note attempts to propose a solution to Justice Powell’s concern. ↑
10.  490 U.S. 755, 762 n.2 (1989); see also Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (agreeing with this characterization of class actions). ↑
11.  559 U.S. 393, 408 (2010) (plurality opinion). ↑
12.  536 U.S. 1, 9–10 (2002). One might find it curious that Justice Scalia wrote the dissent in Devlin arguing for a representational approach as he would later write the majority opinion in Shady Grove, which called a class action a species of “traditional joinder.” Shady Grove, 559 U.S. at 408. In dissent, he wrote that the majority’s decision to permit both the joinder and the representational model “abandons the bright-line rule that only those persons named as such are parties to a judgment, in favor of a vague inquiry ‘based on context.’” Devlin, 536 U.S. at 20 (Scalia, J., dissenting). ↑
13.  137 S. Ct. 1773 (2017). ↑
14.  See, e.g., Mussat v. IQVIA, Inc., 953 F.3d 441, 447–48 (7th Cir. 2020); Al Haj v. Pfizer Inc., 338 F. Supp. 3d 815, 820 (N.D. Ill. 2018). Not all courts have interpreted Bristol-Myers Squibb in this way. For more, see infra Subsection II.A.2. ↑
15.  TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207–08 (2021). Notably, the Court reserved judgment on “whether every class member must demonstrate standing before a court certifies a class.” Id. at 2208 n.4. For further discussion on this question, and whether this actually implicates the representational model, see infra Subsection II.A.3. ↑
16.  See infra Subsection II.A.2 (personal jurisdiction); infra Subsection II.A.3 (standing). ↑

17.  See Wood Hutchinson, supra note 1, at 478 (“The characteristics that would lead a court to treat a class action as a glorified joinder device or as a true representational action are different. Those characteristics are ‘procedural’ in this sense: They establish one’s right to sue in a federal court on the substantive claim, rather than in a state court.”). ↑