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In seeking certification of a Rule 23(b)(3) opt-out class, plaintiffs carry the burden of proving that common issues of law or fact predominate over individual issues, and that the class action is a superior means of resolving the dispute. Fed. R. Civ. P. 23(b)(3). These two requirements are commonly referred to as the “predominance” and “superiority” requirements for class certification. Rule 23(b)(3) requires that the court must make findings of both predominance and superiority in order to certify a class. Although courts typically devote considerable energy to analyzing the predominance issue, court orders and appellate opinions often make cursory reference to the finding of superiority. Court opinions that attempt to address the superiority not only give short shrift to this requirement, but also reflect diverse approaches to this dimension of class certification. The cases demonstrate that there is not one standard method for assessing (or satisfying) the superiority requirement. Courts have adopted at least two standard approaches Generally, courts have adopted at least two standard approaches to thinking about the class superiority requirement. Courts using the first approach simply march through the four factors listed in Rule 23(b)(3), evaluating superiority through the lens of a check list. See Fed. R. Civ. P. 23(b)(3)(A)-(D). Courts adopting the second approach to superiority ask the question: “Superior to what?” Using this approach, courts will assess all other alternative means of possibly resolving the dispute. If no other procedural means are possible, then certifying a class action is the default procedural mode. Recently, the 7th U.S. Circuit Court of Appeals In re Bridgestone/Firestone Inc. Tires Products Liab. Litig., 288 F.3d 1012 (7th Cir. 2002), cert. denied, 537 U.S. 1105 (2003), suggested yet a third approach to thinking about superiority. In this approach, courts assess whether the proposed class action serves the efficiency interests of a “central planning model” as opposed to a “market model.” This novel approach to the superiority requirement has gained the attention and approval of the Texas Supreme Court, with both the 7th Circuit and the Texas court favoring the market model approach. See Henry Schein Inc. v. Stromboe, 102 S.W.3d 675, 700 (Texas 2003). Perhaps the most common method of assessing the superiority of a proposed class action is to evaluate the action in light of the four factors listed in Rule 23(b)(3)(A)-(D), and class counsel often march through these factors in their briefs in support of class certification. Rule 23(b)(3)(A) suggests consideration of the interests of members of the class in individually controlling the prosecution or defense of separate actions. In “negative value suits” or small-claims class actions, where the value of each class member’s individual claim is relatively small, individual class members will most likely have little interest in either prosecuting, defending or individually controlling separate actions. In this situation, the (A) factor weighs in favor of class certification. On the other hand, in cases where class members have vastly differing injuries, merits and damages among their claims, then individual class members might have a high interest in individually controlling, prosecuting and defending separate actions. The most prominent examples of such cases are proposed mass tort class actions, where injuries may range from exposure-only claimants to severely injured or deceased class members. In these types of cases, the (A) factor weighs against class certification. See, e.g., Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996). Rule 23(b)(3)(B) suggests that the court take into account “the extent and nature of any litigation concerning the controversy already commenced by or against members of the class.” Courts have not uniformly interpreted and applied this factor. Some courts have concluded that the existence of pending, parallel litigation in other courts counsels against class certification, on the theory that another court already has jurisdiction over the same matter and can resolve it in that forum. Other courts view the existence of pending, parallel litigation as evidence of a substantial problem worthy of aggregate resolution in a class proceeding, even if the class is duplicative. Yet other courts have concluded that the absence of pending, parallel proceedings elsewhere is evidence of a lack of interest in the subject matter and hence weighs against class certification. Rule 23(b)(3)(C) permits the court to consider “the desirability or undesirability of concentrating the litigation of the claims in the particular forum.” In assessing this factor, courts generally have used the same type of analysis as in a forum non conveniens determination. Thus, courts will assess whether the chosen forum is convenient for the witnesses and the parties; the location or dispersion of the witnesses, parties and documentary evidence; the location of the events giving rise to the alleged injury; the convenience for the court, jurors and the community; and so on. To the extent that these considerations have attenuated connection with the proposed class action forum, this factor will weigh against class certification. This may be particularly so if there is pending, parallel class litigation in another forum with more compelling connections to the litigation. Finally, Rule 23(b)(3)(D) suggests that the court evaluate “the difficulties likely to be encountered in the management of a class action.” This “manageability” factor often becomes the sole focus of many courts’ superiority analysis. Moreover, the concept of manageability is frequently intertwined with the court’s analysis of the predominance requirement. See e.g., Southwestern Refining Co. v. Bernal, 22 S.W.3d 425, 439 (Texas 2000). In assessing manageability, many federal and state courts now require class counsel to furnish the court with a trial plan demonstrating exactly how the proposed class action will actually be tried to a jury. The most prevalent reasons for a finding of lack of manageability concern difficulties in trying a nationwide or multistate class action under differing state laws, multiphase trials and complex or incomprehensible jury instructions. The second type of approach that many courts use to assess superiority is to ask the question: “Superior to what?” In this formulation, class counsel carry the burden of convincing the trial court that no alternative means of resolving the dispute is adequate, and that therefore the class action procedure is the only available (and therefore superior) procedural means for proceeding with the litigation. Courts will consider the entire alternative possible array of procedural means of resolving the dispute, including individual litigation; simple joinder under Fed. R. Civ. P. 18-20; intervention under Fed. R. Civ. P. 24; consolidation under Fed. R. Civ. P. 42; multidistrict litigation under 28 U.S.C. 1407; deference to a governmental administrative agency under the doctrine of “primary jurisdiction”; alternative dispute resolution techniques (mediation, arbitration, conciliation); application of the doctrines of res judicata and collateral estoppel; or test cases. Courts have held, depending on the circumstances and the nature of the proposed class action, that each of these possible alternative means of resolving a dispute is ground for concluding that the proposed class action was not the superior means of resolving the dispute. The 7th Circuit has recently articulated a third novel approach to considering the question of the superiority requirement for class certification, viewing the question of superiority as one concerned with judicial efficiency and economy. In In re Bridgestone/Firestone, supra, Judge Frank H. Easterbrook questioned whether the speedy consolidation and aggregation of claims in class action serve the interests of efficiency and justice. Easterbrook explained: “Efficiency is a vital goal in any given legal system-but the vision of ‘efficiency’ underlying this class certification is the model of the central planner. Plaintiffs share the premise of the ALI’s Complex Litigation Project (1993), which devotes more than 700 pages to an analysis of means to consolidate litigation as quickly as possible, by which the authors mean, before multiple trials break out. The authors take as given the benefits of that step. Yet the benefits are elusive.” 288 F.3d at 1020. In Easterbrook’s view, this class action central-planning model often leads to costly errors, with correct results an infrequent and serendipitous affair. Rather than precipitously certifying class actions as a superior means of achieving efficiency, Easterbrook suggested that real efficiency is better accomplished by permitting individual lawsuits to proceed in the litigation marketplace, and preferably in state court actions (rather than as one nationwide federal class action). Choosing a model based on which is most efficient In Easterbrook’s formulation of the superiority inquiry, courts should evaluate whether the interests of efficiency are better served by the central-planning model or the market model. In the context of the Bridgestone/Firestone Tire proposed nationwide class action, he concluded that the market model better served the interests of efficiency and that, hence, the superiority standard for class certification was not satisfied for that proposed class action. Easterbrook’s market-efficiency theory of superiority is the direct lineal descendent of Judge Richard A. Posner’s analysis of the “premature” class certification problem Posner identified in In the Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1292 (7th Cir. 1995). In that litigation, the district court certified a nationwide class of hemophiliacs in the “tainted blood products” litigation. In reversing class certification, Posner explained the unfairness and inefficiency of precipitously certifying a nationwide class action when, prior to certification, only 13 individual lawsuits had gone to trial and the defendants had won 12 of those. In that scenario, the results of individual cases in the litigation marketplace counseled against the rapid certification of a nationwide class action. Linda S. Mullenix holds the Morris and Rita Atlas chair in advocacy at the University of Texas School of Law and is the author of State Class Action: Practice and Procedure (CCH 2000). She can be reached at [email protected].

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