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When most practitioners think of class actions, the word “plaintiff” comes to mind. Less well appreciated, however, is the defendant class action, which is permitted under Federal Civil Rule of Civil Procedure 23. These unusual classes raise challenging procedural issues as well as interesting strategic possibilities. Although defendant classes are less common than plaintiff classes, courts will certify them if the certification requirements are satisfied. When a court certifies plaintiff and defendant classes in an action, this creates a “bilateral class.” Historically, defendant classes were more prevalent in the English chancery courts during the 17th and 18th centuries. Reversing the modern American use, an English plaintiff used the equitable bill of peace to join defendants to receive an effective remedy. Examples include actions by a manor landlord against tenants, a creditor against a joint stock enterprise or a parson against parishioners to collect tithes. See, generally, Herbert B. Newberg and Alba Conte, 1 Newberg on Class Actions, Sec. 4.45 et seq. THE AMERICAN CLASS ACTION AND RULE 23(a) The American class-action rule, however, is primarily used by numerous plaintiffs seeking common relief against a defendant. The role of the defendant class has substantially diminished in modern practice. Nevertheless, Rule 23(a) authorizes defendant classes, stating, “One or more members of a class may sue or be sued.” Parties may seek certification of a defendant class in various situations. For example, plaintiffs may desire to certify a defendants’ class if multiple defendants have engaged in similar or identical conduct, or if multiple defendants constitute an entity such as a labor union or unincorporated association. Hence, defendant classes often are suitable in injunctive- or declaratory-relief actions. Defendant classes also are likely to be certified in securities and patent infringement litigation, and in actions against state officials challenging state laws. In other situations, defendants may seek certification of a defendant class, or plaintiffs and defendants jointly may seek certification of a defendant class. In bilateral class actions, defendant classes may interpose counterclaims against the plaintiff class. Finally, parties that might otherwise be defendants may sue offensively as a plaintiff, designating a class of defendants who otherwise might be class plaintiffs. A defendant class must satisfy the same Rule 23(a) certification requirements as a plaintiff class, including that the defendant class may be maintained under Rule 23(b) categories. See, e.g., Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 481-84 (2d Cir. 1995); see, generally, 17 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2D Sec. 1770. However, defendant classes do not exactly mimic plaintiff classes, and they often raise due process issues. Requirements for defendant classes typically are more complex than for plaintiff classes. In particular, it often is difficult to designate an adequate or typical defendant class representative, especially when defendants’ interests diverge. No defendant may be willing, for example, to serve as the class representative. Thus, a reluctant defendants’ representative designated by the plaintiffs may not vigorously prosecute the defendant class’s interests. Similarly, it may be more difficult to satisfy the “common questions” or predominance requirement among multiple defendants. And defendant classes implicate complex notice and jurisdictional problems. Moreover, certain Rule 23(b) class categories — the (b)(1)(B) and (b)(2) classes — were drafted from a plaintiff class perspective, thereby limiting their applicability to defendant classes. And obviously, Rule 23(b)(3) defendant classes may be difficult to sustain if multiple defendants have an incentive to exclude themselves from the class. The risks of class-action judgments also are different for plaintiff and defendant classes. An adverse plaintiff class judgment extinguishes an absent class member’s claim, but it usually does not involve any monetary risk for the class member. An adverse defendant class judgment, however, may involve substantial risk of liability and damages for each class member. Hence, notice and jurisdictional requirements may be even more compelling for the certification of a defendant class. CERTIFYING DEFENDANT CLASSES A plaintiff class may seek to certify a defendant class, but this may fail if the class representative has suffered an injury from only one of the defendants. In the leading case LaMar v. H & B Novelty & Loan Co., 489 F.2d 461 (9th Cir. 1973), the Ninth U.S. Circuit Court of Appeals refused to certify a defendant class of Oregon pawnbrokers in a consumer class action under the Federal Truth in Lending Act. The class representative had done business with only one of the defendants. Because the representative did not have a claim against each defendant, the court concluded that the representative could not adequately represent those with claims against other defendants. Many courts continue to require that each named plaintiff must have a claim against each defendant in order to certify a defendant class. This is known as the LaMar rule. See Leer v. Washington Educational Association, 172 F.R.D. 439 (D. Wash. 1997). Other courts recognize an exception to the LaMar rule that permits a court to certify a defendant class if the defendants have a “juridical link,” such as if defendants allegedly have engaged in a conspiracy, common course of conduct or concerted scheme. For example, a court permitted a plaintiff class of security purchasers to certify a defendant class of underwriters because the underwriters were bound together in a course of conduct by a written agreement. See In re Activision Securities Litigation, 621 F. Supp. 415 (M.D. Calif. 1985). Plaintiffs and defendants jointly may seek to certify a defendant class on the ground that a single-class resolution will provide the fairest and most expeditious result for all parties and the court. For example, the defendant Amoco Production Co. and more than 100 named defendants jointly sought certification, with the plaintiff Southern Ute Indian tribe, of a defendant class that included more than 20,000 people with oil and gas interests. Southern Ute Indian Tribe v. Amoco Production Co., 2 F.3d 1023, 1029-30 (10th Cir. 1993). Only three dissenting defendants opposed certification of the defendant class. The 10th Circuit upheld the defendant class certification, finding that the defendants constituted a class that would benefit from a class resolution of common issues, particularly common defenses that might defeat the tribe’s claims. Furthermore, the tribe had agreed to pay the cost of mailing notices to defendant class members. The most common form of defendant class certification is under Rule 23(b)(2), the injunctive and declaratory relief class, although federal courts are split concerning whether this provision may be used to certify defendant classes. Rule 23(b)(2) provides that a class action can be maintained if “the party opposing the class has acted or refused to act on a ground generally applicable to the class.” The Seventh Circuit has declined to certify defendant classes under the literal language of this provision, which refers to “party” in the singular. See Henson v. East Lincoln Township, 814 F.2d 410 (7th Cir. 1987). On the other hand, some federal courts have indicated that Rule 23(b)(2) (as well as other provisions of Rule 23) effectively authorizes bilateral class actions: that is, plaintiff classes seeking relief against defendant classes through an injunction or declaratory judgment. See, e.g., U.S. v. Trucking Employers Inc., 74 F.R.D. 682 (D.D.C. 1977); Technograph Printed Circuits Ltd. v. Methode Electronics Inc., 285 F. Supp. 714 (N.D. III. 1968) (declaratory judgment as to patent validity against defendant class of infringers). A defendant may, through assertion of a counterclaim to a plaintiff’s class action, recast a suit as a defendant’s class action against a plaintiff class. See, e.g ., Chanell v. Citicorp National Services, 89 F.3d 379 (7th Cir. 1996). If the defendant’s counterclaim is based on state law, the defendant’s ability to interpose such a counterclaim may raise problems relating to subject-matter jurisdiction and supplemental jurisdiction over such counterclaims under 28 U.S.C. Sec. 1367 (federal supplemental jurisdiction statute). See Chanell, Id. Intervenors seeking to assert classwide counterclaims may inspire one of the ultimate forms of complex litigation. Thus, class defendant-intervenors may, through assertion of a counterclaim under Federal Rule 13 against the plaintiffs, effectively attempt to create a new class of counterclaim defendants where no such class existed. At least one federal court has stepped back from the brink of such complications. See Frederick County Fruit Growers Association v. Dole, 709 F. Supp. 242 (D.D.C. 1989). In Frederick County Fruit Growers, several individual fruit growers and associations brought an action against the U.S. Labor Department regarding wages paid to migrant workers. The migrant workers intervened as a class on the defendant’s side and then attempted to assert a counterclaim against the individual plaintiffs for underpayment of the workers’ wages. By stipulation, the court agreed to certify a class of growers for 1985, but refused to further certify a defendant class of growers for prior years to permit the migrant worker class to assert a counterclaim against them. The court concluded: The facts of this case move one step beyond the problems that courts have encountered in evaluating counterclaims against a plaintiff class. Here, we have a class of defendant-intervenors who, having associated themselves with an ongoing lawsuit brought by several individual plaintiffs, seek relief under Rule 13 against a newly-created class of counterclaim defendants. In the court’s view, the concerns which counsel against permitting members of a plaintiff class to be subject to counterclaims — concerns rooted in due process and the proper interpretation of Rule 13 — are qualitatively enhanced under these circumstances, where the counterclaims, to afford the relief they seek, demand the simultaneous creation of a defendant class against whom they may be raised. Under these circumstances, the establishment of such a class of counterclaim defendants would push the language of Rule 13, as well as the policies underlying its limitation of counterclaims to “opposing parties,” beyond the breaking point. 709 F. Supp. at 245-46. CREATIVE DEFENDANT CLASSES Perhaps the most interesting and creatively strategic use of the defendant class is when a party that otherwise might be a defendant pre-emptively files an action and seeks the certification of a defendant class consisting of claimants that otherwise might have constituted a plaintiffs’ class. See In re Joint E & S District Asbestos Litigation, 14 F.3d 726 (2d Cir. 1993). This tactical use of the defendant class inverts the usual party alignments. Keene Corp., an asbestos manufacturer, attempted this in 1993 by filing a declaratory class action seeking certification of a mandatory defendant class of presently injured and future asbestos claimants. A federal judge certified the defendant class under Rule 23(b)(1)(B). On appeal, the Second Circuit overturned the certification, concluding that Keene’s claims violated the Constitution’s Art. III case-and-controversy requirement and that the defendant class constituted an illegal end-run around federal bankruptcy laws. 14 F.3d at 732. The author is the Reuschlein Distinguished Visiting Chair at Villanova University Law School. She is the author of Mass Tort Litigation (1996).

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