Trump v. CASA, Inc. Prompts Fresh Look at Class Action Litigation

Lindsay Nako, Impact Fund Executive Director

Rule 23 class actions made headlines earlier this summer with the Supreme Court’s June decision in Trump v. CASA, Inc. The case is substantively about birthright citizenship and the validity of Executive Order No. 14160, which attempts to eliminate birthright citizenship in violation of the Fourteenth Amendment, federal statute, and decades of legal precedent.

But the appeal heard by the Supreme Court in May wasn’t about birthright citizenship at all. Instead, the Court focused on whether federal judges were empowered to order defendants to modify or stop unlawful behavior, policies, or practices generally and not just for the parties in the lawsuit. These types of orders are known as national or universal injunctions, even though their scope isn’t necessarily nationwide or universal.

The Supreme Court decided that judges did not have the power to order national injunctions, except in two situations. First, national injunctions can be issued where they are necessary to provide complete relief to the parties. Second, widespread injunctive relief can be awarded to class actions certified under Federal Rule of Civil Procedure 23(b)(2).

Within days of the CASA decision, class actions were all over the national newsfeed. As a career-long class action litigator heading an organization focused on class and impact litigation as a means of protecting access to courts, it was fascinating to see the public engaging with class actions in an entirely new way.

What happened next was even better. Over the next three months, from July through September, we saw a wave of civil rights class certification decisions in cases challenging federal actions, including the birthright citizenship executive order (CASA, Inc. v. Trump was quickly converted to and certified as a Rule 23(b)(2) class action; the District of New Hampshire also certified a Rule 23(b)(2) class in “Barbara” v. Trump); dismantling USAID (J. Does 4, 7, 22, 27, 28, and 29 v. Musk, D. Md.); detaining immigrants in crowded and unsanitary conditions (Mercado v. Noem, S.D.N.Y.); attempting to force children onto midnight flights to Guatemala (L.G.M.L. v. Noem, D.D.C.); and terminations of federal research grants (Thakur v. Trump, N.D. Cal.).

Aside from the sheer number of classes certified, the wave of orders was also notable for multiple “provisional class certifications.” While not a new concept, the concentration of provisional certifications in such a short span of time is remarkable.

What exactly is provisional class certification? Rule 23 itself makes no reference to provisional class certification and the orders themselves don’t always explain. According to Newberg & Rubenstein on Class Actions, a leading treatise on class action law, “provisional” certification is granted with preliminary relief, such as a temporary restraining order or preliminary injunction. “Provisional” references “the duration of the order” – i.e., the class is certified for as long as the preliminary relief remains in place.

Multiple post-CASA class certification orders note that the legal standard for provisional certification is no different from “regular” class certification and that the district court can modify class certification at any time, which is also true in regular class certification. In addition, provisional certification for purposes of preliminary relief raises the question of whether a future decision on regular certification will be required for final relief or if the court will need to take affirmative steps at some later point to convert preliminary certification to regular certification. If the standard is the same, why not just move for standard certification at the outset of the case?

The answer might be summed up in one word – Vibes. Courts are used to seeing early certification framed as provisional certification, assuring them that plaintiffs are aware of the court’s ability to modify the class later on, even though that is always true under Rule 23. Or preliminary relief may be narrower than what plaintiffs plan to seek in final relief, so plaintiffs are signaling that there may be another round of class certification briefing at a later time. Or the request for preliminary relief may be so urgent that there isn’t time for full briefing on class certification, but action from the court is needed.

These are all valid reasons for framing early certification as provisional certification. But plaintiffs’ counsel should also consider the benefits of moving for regular class certification in circumstances where they might otherwise move for provisional certification. Regular, non-provisional certification of the class makes clear that there is no further showing required from the plaintiffs or the class before final relief is granted. The impetus for any further consideration of class certification sits squarely on defendants’ shoulders, often requiring them to demonstrate changed circumstances of fact or law to obtain further consideration from the court.

These days, regular class certification might provide a kind of peace of mind that is increasingly hard to come by.

Production Credits

Writer: Lindsay Nako

Editors: Teddy Basham-Witherington, Lindsay Nako

Web Producer: John Henry Frankel

Web Editors: Teddy Basham-Witherington, Lindsay Nako