Tilley v. TJX Companies, Inc.

United States Court of Appeals
For the First Circuit

No. 03-8001

GERARDINE E. TILLEY,

Plaintiff, Respondent,

v.

TJX COMPANIES, INC. AND DENNIS EAST INTERNATIONAL, INC.,

Defendants, Petitioners.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.

Joseph C. Abate, with whom David M. O'Connor and O'Connor &
Associates were on brief, for appellants.
Sandra J. Staub, with whom James C. Duda and Bulkley,
Richardson and Gelinas, LLP were on brief, for appellee.

October 2, 2003
 SELYA, Circuit Judge. A recent amendment to the Civil

Rules permits courts of appeals, in their discretion, to entertain

interlocutory appeals from orders granting or denying class

certification. See Fed. R. Civ. P. 23(f). To this point, no court

has addressed the criteria that should guide the exercise of

discretion in permitting (or declining to permit) interlocutory

appeals with respect to defendant classes. This petition for leave

to appeal from a class certification order requires us to plunge

into that abyss.

We approach this task by reshaping the criteria that we

have established for allowing interlocutory appeals in cases

involving plaintiff classes. See Waste Mgmt. Holdings, Inc. v.

Mowbray, 208 F.3d 288, 293-94 (1st Cir. 2000). After formulating

the criteria that will pertain to interlocutory appeals involving

defendant classes, we apply them here and grant the instant

petition.

That brings us to the merits of the class certification

order. The district court advanced two bases for certifying a

class. See Tilley v. TJX Cos., 212 F.R.D. 43, 50 (D. Mass. 2003).1

Upon close perscrutation, we reject both grounds. Specifically, we

1
The district court amended this opinion in a supplemental
memorandum issued on January 13, 2003. This memorandum is
unpublished and its contents are not reflected in the relevant
F.R.D. volume. Its principal purpose was to correct a
typographical error in the original order and make clear that the
district court intended to certify the class under Rule
23(b)(1)(B), not Rule 23(b)(1)(A).

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conclude that the district court (i) erred as a matter of law in

employing Rule 23(b)(2) as a vehicle for certifying a defendant

class, and (ii) abused its discretion in determining that the

possibility of stare decisis, standing alone, was a sufficient

justification for class certification under Rule 23(b)(1)(B).

Consequently, we vacate the class certification order and remand

for further proceedings consistent with this opinion.

I. BACKGROUND

The factual predicate of this case is fairly

straightforward. Gerardine E. Tilley is a graphic artist who

created and published a wallpaper design entitled "Harbortown

Border." She obtained a copyright for the design on September 10,

1999. See 17 U.S.C. § 408. On December 26, 2000, she brought suit

in federal district court against the petitioners, Dennis East

International, Inc., and TJX Companies, Inc. for damages and

injunctive relief. Her complaint alleged that Dennis East, an

importer, copied her design without leave and then advertised and

sold home decor items bearing the replica to approximately 557

retailers throughout the United States (including TJX).

In time, Tilley moved for certification of a defendant

(retailer) class. The district court certified the proposed class

under Fed. R. Civ. P. 23(b)(1)(B) for both damages and equitable

relief, and, in the alternative, under Fed. R. Civ. P. 23(b)(2) for

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injunctive relief only. Tilley, 212 F.R.D. at 50. In the process,

the court designated TJX as the class representative. Id. at 45.

The petitioners timely sought leave from this court to

appeal the class certification order pursuant to Rule 23(f).

Drawing upon the standards articulated in Mowbray, 208 F.3d at 293-

94, they argued that the certification order warranted immediate

review because it raised important and unsettled issues of law,

including (i) the appropriateness of certifying a defendant class

under Rule 23(b)(2), (ii) the appropriateness of class

certification under Rule 23(b)(1)(B) based solely on the

possibility that the litigation could have a stare decisis effect

on subsequent actions, and (iii) the constitutionality, vis-à-vis

absent class members, of certifying a mandatory defendant class in

an action that includes claims for money damages. The petitioners

also argued for immediate review on the theory that class

certification had so raised the ante that they faced irresistible

pressure to settle.

Motivated in part by the unresolved issue of whether the

Mowbray criteria apply to petitions seeking interlocutory review of

orders certifying defendant classes, we directed the parties to

brief both the Rule 23(f) issues and the merits. We heard oral

argument on September 10, 2003, and took the matter under

advisement.

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II. LEAVE TO APPEAL

We begin with the threshold question of whether to

entertain the appeal on an interlocutory basis. In mounting this

inquiry, we regard the interests and circumstances of Dennis East

as only marginally relevant. Dennis East is not a member of the

proposed class, and the class certification order has no direct

effect on Tilley's claim against it (which remains separate and

distinct from her claim against the class). See Tilley, 212 F.R.D.

at 45. Given these facts, Dennis East — as its counsel conceded at

oral argument in this court — lacks standing to challenge class

certification. Cf. Dopp v. HTP Corp., 947 F.2d 506, 512 (1st Cir.

1991) (explaining that when an order is aimed specifically at

others, the fact that it "has an indirect or incidental effect" on

the putative appellant does not confer standing to appeal);

Morrison-Knudsen Co. v. CHG Int'l, Inc., 811 F.2d 1209, 1214 (9th

Cir. 1987) (holding that a defendant may not appeal the dismissal

of claims against a codefendant because it is not a party to those

claims; "[a]n indirect financial stake in another party's claims is

insufficient to create standing on appeal").

Nevertheless, Dennis East's lack of standing does not

frustrate the joint petition: TJX — a party with impeccable

standing to appeal the class certification order — is itself a

petitioner. So long as one petitioner has standing, the proceeding

may go forward without any consideration of the standing of co-

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petitioners. See Watt v. Energy Action Educ. Found., 454 U.S. 151,

160 (1981); Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.

252, 264 & n.9 (1977); Buckley v. Valeo, 424 U.S. 1, 12 (1976) (per

curiam).

Having cleared that hurdle, we move to a determination of

what criteria govern the granting of Rule 23(f) petitions for

interlocutory review of orders certifying (or refusing to certify)

defendant classes. In Mowbray, this court described three

categories of cases in which interlocutory review of certification

orders anent plaintiff classes would be appropriate:

First, an appeal ordinarily should be
permitted when a denial of class status
effectively ends the case (because, say, the
named plaintiff's claim is not of a sufficient
magnitude to warrant the costs of stand-alone
litigation). Second, an appeal ordinarily
should be permitted when the grant of class
status raises the stakes of the litigation so
substantially that the defendant likely will
feel irresistible pressure to settle. Third,
an appeal ordinarily should be permitted when
it will lead to clarification of a fundamental
issue of law.

208 F.3d at 293-94. In addition, we left room for the possibility

that special circumstances or the need to avoid manifest injustice

might expand this list. Id. at 294.

Defendant classes are a relatively rare breed, and no

court of appeals has had the opportunity to consider whether the

same set of standards should apply to petitions for leave to appeal

orders certifying (or refusing to certify) defendant classes.

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Structurally, there are arguments to be made on both sides of this

question. On the one hand, Rule 23 generally treats plaintiff and

defendant classes the same: it authorizes class members to sue or

be sued as representative parties; it requires class actions to

satisfy the four prerequisites of numerosity, commonality,

typicality, and adequate representation regardless of whether the

action involves a plaintiff class or a defendant class; and it

conditions all certifications on the class's ability to come within

one of the niches carved out by Rule 23(b). This equality of

treatment arguably favors use of the same criteria for permitting

interlocutory review of all class certification decisions.

On the other hand, defendant classes possess some salient

features that distinguish them from plaintiff classes. For one

thing, a plaintiff who initiates a suit aimed at the certification

of a defendant class has a clear incentive to select a weak

adversary — as that adversary likely will be chosen to represent

the defendant class. For another thing, courts have found the due

process interests of absent members of defendant classes deserving

of special solicitude. See, e.g., Pabst Brewing Co. v. Corrao, 161

F.3d 434, 439 (7th Cir. 1998); see also 2 Alba Conte & Herbert B.

Newberg, Newberg On Class Actions § 4:48, at 344-45 (4th ed. 2002).

It is these particularities that prevent us from mechanically

applying the Mowbray criteria to appeals involving defendant

classes. Instead, we test those criteria to determine whether they

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should be retained, retained with modifications, or discarded in

dealing with defendant classes.

In our judgment, the logic underlying the first Mowbray

criterion — that it is appropriate to exercise appellate

jurisdiction when a denial of class status effectively ends the

case because, say, the cost of stand-alone litigation far outweighs

the value of the plaintiff's individual claim — lends itself to

defendant classes as well. When a defendant class is involved,

interlocutory review is warranted if certification has been denied

and the plaintiff's claim would only be worth pursuing as against

the class. This may occur, for example, when the aggregate value

of the plaintiff's claims against all potential defendants

justifies a single class action, but the distilled value of claims

against individual defendants does not justify the cost of separate

actions.2

Skipping over the second Mowbray criterion for a moment,

it is readily evident that the third criterion — that an

interlocutory appeal may be allowed when it will lead to the

resolution of fundamental and unsettled issues of law — can be

transplanted root and branch for use in actions involving defendant

classes. That the proposed class comprises defendants rather than

2
We note here, as we did in Mowbray, 208 F.3d at 293, that
petitioners who seek to fit within the contours of this category
also must demonstrate some significant weakness in the
certification decision.

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plaintiffs does not lessen the desirability of clarifying

significant legal issues that might otherwise escape effective end-

of-case review. In much the same vein, reserving the right to

grant leave to appeal when special circumstances exist or the

prospect of manifest injustice looms, see Mowbray, 208 F.3d at 294,

is equally appropriate in cases involving defendant classes.

We now return to the more unwieldy transplantation of the

second Mowbray criterion. With regard to plaintiff classes, we

explained that "an appeal ordinarily should be permitted when the

grant of class status raises the stakes of the litigation so

substantially that the defendant likely will feel irresistible

pressure to settle." Id. at 293. It seems clear, however, that

when the spotlight shines on a defendant class, this category loses

much of its luster. Unlike an action involving a plaintiff class

(in which the defendant's potential liability increases

dramatically upon the granting of class certification), the named

defendant's individual liability generally remains constant in a

class action involving a defendant class. Moreover, after

certification of a defendant class, the original defendant — whose

predicament presumably will be representative of the class, see

Fed. R. Civ. P. 23(a)(3) — will face the same claims and mount the

same defenses as in an individual suit. Indeed, the defendant may

incur reduced costs if certification prompts class members to help

fund a common defense.

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 We do not mean to close the door completely on the

utility of Mowbray's second criterion in actions involving

defendant classes. In the unlikely event that certification places

inexorable settlement pressure on a particular class of defendants,

the special circumstances/manifest injustice exception is

sufficiently flexible to afford relief. In the case at hand,

however, no such showing has been made.

To be sure, the petitioners argue that the certification

order places pressure on them to settle in two ways: (i) it

exposes Dennis East to indemnity and breach of warranty claims

expected to be brought by each of the retailers, and (ii) it risks

increasing litigation expenses to the point that defense costs

would exceed the sum of Dennis East's assets and available

insurance. What the petitioners fail to explain, however, is why

Dennis East is a relevant party in this analysis. As noted above,

Dennis East is not a member of the class certified by the district

court, and the court designated TJX, not Dennis East, as the class

representative. The plaintiff's claim against Dennis East remains

separate from her claim against the class, and, accordingly, any

increased pressure that Dennis East might face is inconsequential.

To recapitulate, interlocutory appeals of class

certification orders in cases involving defendant classes are

warranted when one of three circumstances exists: (i) denial of

certification effectively disposes of the litigation because the

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plaintiff's claim would only be worth pursuing as against a full

class of defendants; or (ii) an interlocutory appeal would clarify

an important and unsettled legal issue that would likely escape

effective end-of-case review; or (iii) an interlocutory appeal is

a desirable vehicle either for addressing special circumstances or

for avoiding manifest injustice. We remind those who seek

interlocutory review pursuant to the first criterion limned above

that such petitioners also must demonstrate that the district

court's ruling on class certification is problematic. See supra

note 2.

The circumstances here are special (and, thus, satisfy

the test). Entertaining an appeal here and now will clarify

important and unsettled legal issues. What is more, the parties,

at our invitation, have fully briefed the merits, and postponing a

decision would be wasteful. Accordingly, we grant the petition for

leave to appeal and proceed to the merits.

III. THE MERITS

We review orders granting or denying class certification

for abuse of discretion. Mowbray, 208 F.3d at 295. An abuse of

discretion occurs when a district court adopts an incorrect legal

rule, relies upon an improper factor in making a discretionary

decision, neglects a significant factor relevant to that decision,

or considers only the proper factors but makes a clear error of

judgment in weighing them. Id.

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 A. Defendant Classes Under Rule 23(b)(2).

This appeal presents us with the occasion to address, for

the first time, whether Rule 23(b)(2) contemplates the

certification of defendant classes. The petitioners argue that

defendant class actions lie outside the purview of that provision.

In general, we agree.3

Rule 23(b)(2) provides for class certification when

the party opposing the class has acted or
refused to act on grounds generally applicable
to the class, thereby making appropriate final
injunctive relief or corresponding declaratory
relief with respect to the class as a whole.

Fed. R. Civ. P. 23(b)(2). This language is quite clear: "the

party opposing the class" means the opposing party in the

litigation.4 In ordinary circumstances, it will be the defendant

— the alleged wrongdoer — who "has acted or refused to act on

grounds generally applicable to the class," thereby making

certification of a plaintiff class appropriate. In cases involving

garden-variety defendant classes, there will be no single act or

refusal to act on the part of the plaintiff (the party opposing the

3
We say "in general" because one can envision strange cases in
which a defendant class might fit within the literal contours of
Rule 23(b)(2). See, e.g., Henson v. E. Lincoln Township, 814 F.2d
410, 414 (7th Cir. 1987) (discussing the possibility of a reverse
declaratory action).
4
Any argument that this phrase means "the party challenging
class certification" is hopeless. See Fed. R. Civ. P. 23(b)(2)
advisory committee's note; see also 7A Charles A. Wright et al.,
Federal Practice and Procedure § 1775, at 449 (2d ed. 1986 & Supp.
2003).

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class) that makes injunctive or declaratory relief appropriate.

Rather, it will be the defendants — the members of the putative

class — who allegedly have acted in the same tortious or unlawful

way (here, by selling infringing articles). The language of Rule

23(b)(2) leaves no room for such a circumstance to ground

certification of a defendant class. For this reason, defendant

classes generally lie outside the contemplation of Rule 23(b)(2).

We need not rely solely on direct textual support for

this interpretation. Three other sources fortify our position.

First, the drafting history of Rule 23(b)(2) makes no reference to

defendant classes, using only examples involving plaintiff classes

to illustrate how the rule is designed to operate. See Fed. R.

Civ. P. 23(b)(2) advisory committee's note. Second, most of the

major treatises agree that the language of the rule is clear and

that "the better view is to restrict its applicability to plaintiff

classes seeking injunctive relief." 7A Charles A. Wright et al.,

Federal Practice and Procedure § 1775, at 462 (2d ed. 1986 & Supp.

2003); accord 5 James Wm. Moore et al., Moore's Federal Practice §

23.43[5], at 23-199 (3d ed. 2003).5 Last — but far from least —

the courts of appeals that actually have discussed the

5
One respected commentator is ambivalent on the point. See 2
Newberg on Class Actions, supra § 4:46, at 337, § 4:66, at 400
(first observing that the language of Rule 23(b)(2) "appears to be
inconsistent with, or severely limiting in its application for
potential defendant classes," but later appealing to the utility of
the provision to provide justification for the practice).

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applicability of Rule 23(b)(2) to defendant classes share this

view. See Henson v. E. Lincoln Township, 814 F.2d 410, 413-16 (7th

Cir. 1987); Thompson v. Bd. of Educ., 709 F.2d 1200, 1204 (6th Cir.

1983); Paxman v. Campbell, 612 F.2d 848, 854 (4th Cir. 1980) (per

curiam); see also Greenhouse v. Greco, 617 F.2d 408, 413 n.6 (5th

Cir. 1980) (suggesting in dictum that Rule 23(b)(2) is "not an

appropriate basis for the certification of a defendant class").6

Tilley attempts to parry this thrust by reliance on the

decision in Marcera v. Chinlund, 595 F.2d 1231 (2d Cir. 1979),

vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915

(1979), in which the Second Circuit approved without discussion the

certification of a defendant class under Rule 23(b)(2). But the

Marcera court's decision rested on thin support: a case decided

under the pre-1966 version of Rule 23 and without any mention of

Rule 23(b)(2); a district court decision that relegated its summary

discussion of this matter to a footnote; and two student-authored

law review notes (one of which concludes that Rule 23(b)(2) cannot

be used as a vehicle for certifying a defendant class). See id. at

1238 (citing, inter alia, 9 Val. U. L. Rev. 357, 391 & n.128

(1975)). Perhaps more importantly, the case is easily

6
The Supreme Court has not spoken to the point. In Zablocki
v. Redhail, 434 U.S. 374, 380 n.6 (1978), the Court noted that the
appellant had not appealed the district court's certification of a
defendant class under Rule 23(b)(2), but took no position on the
issue. A decade later, the Court granted certiorari in Henson, 484
U.S. 923 (1987), but the parties subsequently settled and
certiorari was dismissed, 506 U.S. 1042 (1993).

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distinguishable. The conclusion that Rule 23(b)(2) was "an

appropriate vehicle" for certification of a defendant class was

limited to suits "for injunctive relief against a class of local

public officials." Id. (emphasis supplied). Whether or not such

a class fits within the contours of the rule — a matter on which we

take no view — the class in this case is not so composed. We hold,

therefore, that the district court erred in certifying a defendant

class under Rule 23(b)(2).

B. Stare Decisis.

We now turn to the district court's decision to certify

a class under Rule 23(b)(1)(B). This too presents an unsettled

legal issue; the district court rested its ruling squarely on a

perceived stare decisis effect, Tilley, 212 F.R.D. at 48, and we

have not yet spoken to the appropriate role of stare decisis in

this context. Moreover, the pertinent trial court decisions in

this circuit are both scarce and dissonant. Compare, e.g., Mertens

v. Abbott Labs., 99 F.R.D. 38, 40 (D.N.H. 1983) (declining to

certify a plaintiff class under Rule 23(b)(1)(B) because the only

impact of a non-class case would be to create a stare decisis

effect), with, e.g., Dale Electronics, Inc. v. R. C. L.

Electronics, Inc., 53 F.R.D. 531, 537 (D.N.H. 1971) (concluding

that the effect of stare decisis on absent class members was a

sufficient justification for certifying a defendant class under

Rule 23(b)(1)(B)). We hold, contrary to the court below, that the

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anticipated effect of stare decisis on subsequent cases brought by

absent class members, without more, is an insufficient

justification for class certification under Rule 23(b)(1)(B).

Rule 23(b)(1)(B) permits class certification when

the prosecution of separate actions by or
against individual members of the class would
create a risk of . . . adjudications with
respect to individual members of the class
which would as a practical matter be
dispositive of the interests of the other
members not parties to the adjudications or
substantially impair or impede their ability
to protect their interests.

Fed. R. Civ. P. 23(b)(1)(B). The rule's "by or against" language

makes pellucid its universal applicability, so the difficulty here

is not the appropriateness of applying the provision in actions

involving defendant classes. Rather, the quandary concerns whether

the mere possibility that the precedential effect of an individual

suit will influence the outcome of later actions renders that suit,

in the language of the rule, "as a practical matter[,] dispositive

of the interests of the other members not parties to the

adjudications. . . ." Our negative answer to this question applies

with equal force to both plaintiff and defendant class actions.

The petitioners focus on the rule's obvious concern for

the interests of absent class members and argue that its use is

inappropriate in the instant case because the absent class members

are defendants who oppose certification. If anything serves to

impede the absent class members' ability to protect their

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interests, it is the forced grouping of defendants dictated by the

certification order and not the possibility of stare decisis.

The district court rejected this argument. It explained

that the defendants' preference for individual litigation "does not

alter the fact that the proposed class falls absolutely within the

letter of Rule 23(b)(1)(B)." Tilley, 212 F.R.D. at 48. In the

court's view, the rule applies because "each defendant confronts

liability for its sales from the same allegedly infringing product

line," and, therefore, "[t]here is indeed a risk that a finding

against TJX in the present case could, through stare decisis,

result in the substantial impairment of subsequent defendants'

efforts to defend cases against Tilley." Id. Although it conceded

that "a defendant may not be estopped outright from litigating an

issue others have lost," id. (citing Blonder-Tongue Labs., Inc. v.

Univ. of Ill. Found., 402 U.S. 313, 329 (1971)), the district court

nonetheless concluded that the difficulty absent class members

would face in distinguishing their own conduct from TJX's conduct

made Rule 23(b)(1)(B) certification appropriate.

This line of reasoning proves too much: taken literally,

it would render the other categories under Rule 23(b) superfluous.

For any case to qualify for class action treatment, there must

exist "questions of law or fact common to the class," Fed. R. Civ.

P. 23(a)(2), and the presence of these common questions will

necessarily mean that an individual adjudication would have some

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precedential value with respect to subsequent litigation. Because

the structure of Rule 23 makes very clear that subsection (b)(1)(B)

was not intended to swallow the other three routes to certification

spelled out in Rule 23(b), we conclude that the effect of stare

decisis, standing alone, will not justify class certification under

Rule 23(b)(1)(B).

We reach this decision mindful of the district court's

reliance on Dale Electronics. In Dale Electronics, a district

court certified a defendant class of alleged patent infringers

under Rule 23(b)(1)(B) because of its fear that the outcome in one

case would "be given some weight" by other district courts in

subsequent cases against other alleged infringers. 53 F.R.D. at

537. But the Dale Electronics court narrowly limited class

certification to the issue of patent invalidity, and even then the

court recognized that it was "venturing into what is mainly

unchartered waters" with "the possibility that a higher court

[would] determine that the class action device was not intended for

such a voyage." Id. We agree with the Eleventh Circuit that a

rule like the one in Dale Electronics "would enable any action,

with the possibility that it might be one of multiple actions, to

be certified pursuant to Rule 23(b)(1)(B)." In re Dennis Greenman

Sec. Litig., 829 F.2d 1539, 1546 (11th Cir. 1987). Because of this

"flood gate" phenomenon, common sense suggests that class

certification based solely on the prospect of a stare decisis

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effect is improper. The vast majority of courts confronted with

the question have so ruled. See In re Catawba Indian Tribe, 973

F.2d 1133, 1137-38 & n.4 (4th Cir. 1992); In re Dennis Greenman

Sec. Litig., 829 F.2d at 1546; La Mar v. H & B Novelty & Loan Co.,

489 F.2d 461, 466-67 (9th Cir. 1973); Eliasen v. Green Bay & W.

R.R. Co., 93 F.R.D. 408, 412 (E.D. Wis. 1982), aff'd, 705 F.2d 461

(7th Cir. 1983) (table); Landau v. Chase Manhattan Bank, 367 F.

Supp. 992, 998 (S.D.N.Y. 1973); see also Larionoff v. United

States, 533 F.2d 1167, 1181 n.36 (D.C. Cir. 1976) (suggesting that

the district court's Rule 23(b)(1)(B) certification based on

anticipated stare decisis consequences was improvident), aff'd on

other grounds, 431 U.S. 864 (1977); see generally 7A Federal

Practice and Procedure, supra § 1774, at 437-39 (noting that some

practical effect greater than stare decisis must be shown). But

see First Fed. of Mich. v. Barrow, 878 F.2d 912, 920 (6th Cir.

1989) (citing, with apparent approval, a district court's decision

to certify a class under Rule 23(b)(1)(B) based on the prospect of

stare decisis). We adopt the majority view and hold that the

certification of a class under Rule 23(b)(1)(B) cannot rest solely

on an anticipated stare decisis effect.

That is not to say that the potential impact of stare

decisis is wholly immaterial to class certification under Rule

23(b)(1)(B). The rule is concerned with suits that would

"substantially impair or impede" the ability of absent class

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members to protect their interests in subsequent cases. Although

stare decisis does not qualify as an effect that, in and of itself,

would cause a substantial impairment or impediment, it is

conceivable that stare decisis, in combination with other factors,

might support a finding that a substantial impairment or impediment

looms. See, e.g., In re Phar-Mor, Inc. Sec. Litig., 875 F. Supp.

277, 280 (W.D. Pa. 1994) (certifying a defendant class of

accounting partners under a theory of precedent-plus because one

partner's admissions could be introduced against other partners in

subsequent cases); see also 2 Newberg on Class Actions, supra §

4:10, at 53 ("While precedent alone will not usually permit

certification under Rule 23(b)(1)(B), precedent plus some other

practical factor, such as marketplace sensitivity to the result of

an individual suit for a declaration of patent validity or patent

infringement, should be sufficient to qualify for a Rule

23(b)(1)(B) class.").7

Although "stare decisis plus" may, in certain

circumstances, provide an adequate basis for class certification

under Rule 23(b)(1)(B), the district court's findings, to this

point, do not bring that concept into play. The court afforded no

rationale for Rule 23(b)(1)(B) certification apart from its finding

7
There is, of course, a difference between stare decisis and
issue preclusion. A realistic prospect of the latter may afford a
cognizable basis for a finding of substantial impairment. See,
e.g., Washington v. Aircap Indus., 831 F. Supp. 1292, 1294 (D.S.C.
1993).

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that stare decisis might impair absent retailers' efforts to defend

against Tilley's onslaught. See Tilley, 212 F.R.D. at 48. Because

the district court did not identify any other factor counseling in

favor of a finding of substantial impairment or impediment, we must

vacate its class certification order.

That said, we remain mindful that the district court

hinted at other (unelucidated) bases for an impairment of rights.

See id. (mentioning, but not explicating, "a risk of substantial

impairment of the interests of absent class members"). We are also

cognizant of the idiosyncratic circumstances that would seem in

some ways to make class certification an attractive device in cases

such as Tilley's (in which a single copyright holder seeks to

prevent continued infringement on the part of many defendants who

sell identical articles). We therefore leave the district court

free, on remand, to explore whether some suitable basis for class

certification in fact exists.

IV. CONCLUSION

We need go no further.8 For the foregoing reasons, we

grant the petition for leave to file an interlocutory appeal,

8
Because the class certification order must be vacated, we
find it unnecessary to decide other vexing issues raised by the
petitioners concerning (i) the appropriateness of using Rule
23(b)(2) to certify a class in an action brought for money damages
as well as injunctive relief; and (ii) whether certifying a
mandatory defendant class (under either Rule 23(b)(2) or Rule
23(b)(1)(B)) in an action that includes claims for money damages
violates the due process and Seventh Amendment rights of absent
class members.

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vacate the class certification order, and remand the case for

further proceedings consistent with this opinion. We take no view

as to whether a defendant class may be certified for a different

set of reasons or under a different provision of Rule 23(b). Cf.

Mowbray, 208 F.3d at 294 (suggesting that appellate courts should

err on the side of allowing the district courts an opportunity to

fine-tune their class certification decisions).

The petition for leave to appeal is granted. The class

certification order is vacated. The case is remanded to the

district court. Costs are to be taxed in favor of the petitioners.

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