This case involves a defendant class action, a litigation “unicorn.” Here, while the district court failed to follow Federal Rule of Civil Procedure 23 its decision is affirmed due to the unique circumstances of this case.
Class counsel was not appointed when the class was certified. During the ensuing seven months before counsel was appointed, the liability phase of the case continued. While events impacting the liability and potential damages of the unnamed class members took place, the class had no attorney owing duties and responsibilities to the class.
However, after receiving notice of the class certification, no class members objected to the absence of class counsel or to the failure of the district court to appoint class counsel at the time of certification. Even when class members finally moved to decertify the case more than two years after the class was certified and almost two years after class counsel was named, they failed to raise such an objection. Likewise, class members did not raise the district court’s failure to apply the Rule 23(g) factors prior to or in their decertification motions. As a result, this litigation has progressed to an extent that it would be difficult if not impossible to remedy the errors that the class members now raise. Over 2,500 class members have resolved the claims against them. These settlements have involved payment of funds by defendant class members and the distribution of funds. The toothpaste cannot be put back into the tube.