What happens when you have a class action where some putative class members suffered an injury while others did not? Can such a proposed class even be certified? The answer depends on whom you ask. The plaintiffs/class representatives will surely point out that whether any individual class member actually suffered a compensable injury is a mere administrative detail that can be sorted out after the fact. Trust us, Judge. Just certify the class, and we’ll make sure the right people get paid.

The defendants on the other hand will emphasize (correctly) that there is this little thing called due process, which prohibits certifying a class where individual class members have contested injuries or no injuries at all. That was the dilemma that the First Circuit addressed in In re Asacol Antitrust Litig., No. 18-1065, 2018 WL 4958856 (1st. Cir. Oct. 15, 2018), and the court came to the correct conclusion that a class that includes uninjured class members cannot be certified. The First Circuit also poured buckets of cold water on questionable concepts of aggregated proof and statistical modeling.

Here is what happened. The plaintiffs sued the defendant claiming that its discontinuation of one drug and introduction of similar substitute drugs violated the consumer protection and antitrust laws of twenty-six jurisdictions. Id. at *1. The district court later certified a class of “all Asacol purchasers who subsequently purchased [the alleged substitute drugs] in one of those twenty-six jurisdictions.” Id.

But here is the rub. In certifying the class, the district court found that approximately 10 percent of the class members (mostly if not entirely third-party payers) had not suffered any injury attributable to the defendants’ alleged wrongful conduct. Id. And here is the further rub. The defendants claimed that uninjured class members actually made up more than 10 percent of the class, and the plaintiffs claimed that the number actually was less. In other words, it was undisputed that some portion of the class had no compensable injury, and the fact of injury was contested for some additional and unknown portion of the class.

The district court determined nonetheless that the uninjured class members could be removed “in a proceeding conducted by a claims administrator.” Id. When someone suggests relying on a post-certification “claims process” to smooth over disputed individual issues in a class action, the red flags start to wave in our heads. The submission of a form to a “claims administrator” is not an adequate substitute for the due process to which defendants are entitled absent an agreement, such as with a class settlement.

Red flags waived in the heads of the First Circuit too, resulting in an opinion reversing class certification. First, there was the issue of standing. The defendants argued that the class representatives had never made purchases within twenty-two of the jurisdictions and thus lacked standing to sue under those states’ laws. Id. at *3. In the First Circuit’s view, the issue was whether the class representatives had the proper incentive to advance claims under all those states’ laws, and it ruled that they did. Id. at **3-5. The only carve out was New York, which uniquely requires proof of deception. Id.

Second, the First Circuit considered Rule 23(c)(3)’s requirement that common issues predominate over individual issues, and this is where this class action failed. It was undisputed that some number above or below ten percent of the certified class suffered no compensable injury. Id. at *6. The district court’s major error was its assumption that it would be possible “to establish a mechanism for distinguishing the injured from the uninjured class members” and that “Class members will be asked to submit a claim form, along with data and documentation that may be deemed necessary for consideration.” Id. at *7.

That process would not be sufficient, in part because “[o]ne can only guess what data and documentation may be deemed necessary, what the formula will be, and how the claims administrator will decide who suffered no injury.” Id. The First Circuit distinguished the situation where class members would establish their claims through “’unrebutted testimony’ contained in affidavits.” Id. (distinguishing In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015)). Here, the plaintiffs did not intend to rely on unrebutted testimony to eliminate uninjured class members, and the defendants had expressed their intention to challenge any affidavits that might be gathered. Id. Because such disputed individual issues cannot be resolved under Rule 23, the First Circuit’s “inability to fairly presume that these plaintiffs can rely on unrebutted testimony in affidavits to prove injury-in-fact is fatal to plaintiffs’ motion to certify this case.” Id. at *8.

This is an important holding. The predominance of individual issues should preclude class certification under Rule 23(c) in every instance, and that rule applies with no less force when the predominating individual issue is whether each class member has suffered an injury in fact. It is not sufficient, as the First Circuit held, to certify the class based on vague promises of sorting it out later.

Nor is it acceptable to promise proof of “class-wide impact” through purported expert testimony. According to the plaintiffs, proof of “class-wide impact” would result in some uninjured class members receiving compensation, but it will all “net out” in the end and “should be of no concern” to the defendants. Id. at *9. Such rough justice ignores that when a defendant is not liable to particular individuals because they suffered no injury, the amount of total damages should be reduced. Id. Moreover, when relief depends on determining whether an individual has been injured, the defendant must have an opportunity to challenge each class member’s proof. Id.

Finally, the First Circuit condemned the reliance on statistical analysis at the expense of due process. The following quote is long, but you should read it because it is powerful:

Accepting plaintiffs’ proposed procedure for class litigation would also put us on a slippery slope, at risk of an escalating disregard of the difference between representative civil litigation and statistical observations of tendencies and distributions. Once one accepts plaintiffs’ “no harm, no foul” position there would be no logical reason to prevent a named plaintiff from bringing suit on behalf of a large class of people, forty-nine percent or even ninety-nine percent of whom were not injured, so long as aggregate damages on behalf of “the class” were reduced proportionately. Such a result would fly in the face of the core principle that class actions are the aggregation of individual claims, and do not create a class entity or re-apportion substantive claims.

Id. at *10 (emphasis added). Read that last line again because it re-emphasizes that Rule 23 is a rule of procedure. It does not bestow substantive rights, nor could it alter substantive law—such as laws requiring proof of an injury in fact before someone can sue—without running afoul of the Rules Enabling Act.

The First Circuit here applied the predominance requirement in a way that essentially enforces the requirement of ascertainability—i.e., you can’t certify a class if you can’t ascertain who would be in the class before certification. The First Circuit also walked back from the Neurotin trilogy, which pushed concepts of aggregated proof beyond the breaking point, which we discussed here. Both are welcome developments.