Enid L. Zafran


While the purposes of class actions are easy to comprehend, the actual application and requirements of Rule 23 are complex. Before the suit may proceed, it must be certified by the trial court. Although Rule 23 carefully lists the criteria for the court to consider, certification is not a predictable outcome. If it is denied, the action is then litigated solely on the claims of the named plaintiffs. Under certain circumstances the denial would signal the end of the suit. Such an instance would occur if the named plaintiff's claims had become moot. His action would no longer satisfy the "case or controversy" requirement for adjudication in the federal courts. For such a plaintiff an appeal of the denial would be vital to maintain his cause, yet it is not clear whether this plaintiff even has sufficient "case or controversy" to maintain an appeal." In 1980 the Supreme Court issued two decisions to address this question and extended its doctrine of "flexible mootness" in class actions. This article will examine the history of this problem, the opinions of the Court, and possible ramifications of the Court's decisions.

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