Heads I win, tails you lose: Fail-safe class definitions

Class certification typically turns on an analysis of the familiar elements of Federal Rule 23(a) and (b). While much has been written about these standards, surprisingly little has been written about the most critical element of all: the class definition. Like a canary in a coal mine, improper class definitions are often the first sign of deeper and sometimes fatal problems that get to the heart of the class itself.

Randleman v. Fidelity Nat’l Title Ins. Co., 646 F.3d 347 (6th Cir. 2011) is the first case from the Sixth Circuit to expressly address the fail-safe class, which is defined as a class that requires a decision on the merits of a claim in order to determine who is within the class.
The case is significant to all class action practitioners because it highlights a pleading challenge for plaintiffs, and a potent defense for defendants. The case also illustrates how a flawed class definition can be symptomatic of claims that are inappropriate for class treatment.

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