Does plaintiff’s contemporaneous filing of a motion for summary judgment and a motion for class certification violate the rule against one-way intervention? In Costello, plaintiff filed his motions for summary judgment and class certification contemporaneously. The lower court first denied class certification and then granted the motion for summary judgment. On appeal, the Seventh Circuit found that the rule against one-way intervention was not violated. The court, however, noted that the simultaneous filing “came dangerously close” to violating the rule against one-way intervention: a situation that arises when a plaintiff moves for class certification after receiving a favorable ruling on the merits. As explained by the court, the rule exists because it is unfair to allow members of a class to benefit from a favorable decision without subjecting themselves to the binding effect of an unfavorable one. If an individual plaintiff gets a favorable ruling on the merits before certification, class members have an incentive to remain in the lawsuit, thus taking advantage of the ruling. Conversely, if the plaintiff loses on summary judgment, class members have an incentive to opt out and not be bound by the adverse decision.  The Seventh Circuit thus admonished plaintiffs to “exercise caution when seeking a ruling on the merits of an individual plaintiff’s claim before the district court has ruled on class certification.”

Costello v. Beavex, Inc., No. 15-1109 & 15-1110 (7th Cir. Jan. 19, 2016).