(dissenting):
I dissent from the result reached by the majority.
a.
The threshold question here, of course, is whether the district court’s determination that this case may proceed as a class action is subject to interlocutory review under section 1292(b).1 I agree with the conclusion reached by the' other ' members of the Court that this question is reviewable.
b.
After settling the issue of appealability, the majority rules that the class action determination of the district court was improper. Having concluded that the district court erred in not giving fuller consideration to the “test case” as an alternative means of adjudication, the better approach, in my judgment, would be for the Court to remand for a new determination by the district court whether the case should proceed as a class action. Rather than doing so, the majority seems to bar the district court from reconsidering whether class action treatment is appropriate at the liability stage of this case. This appears, to me, to be erroneous.
Blonder-Tongue, taken together with Bruszewski, certainly does require a “new look” at the test case. However, the implications of Blonder-Tongue are not so settled as the majority appears to think. For example, even if that decision signals a general demise of the “mutuality” requirement, there is no means by which this Court could, with certainty, predict what res judicata or collateral estoppel effect would be accorded any judgment in favor of Katz.2 More germane still is the observation that the requirement of mutuality, though possibly moribund, is not yet dead. Both Blonder-Tongue and Bruszewski though expressing principles wide-ranging in their implications, were cases where mutuality analysis was discarded to permit “defensive” use of collateral estoppel. Yet the other plaintiffs in this case would seek, in the majority’s hypothetical instance, to make “offensive” use against Carte Blanche of a judgment in favor of Katz. I am not prepared, at least at this time, to hold that either Blonder-Tongue or Bruszewski would necessarily permit such a result.
*774Thus, though the unsteady law of res judicata and collateral estoppel justifies further consideration of the test case as an alternative to a class action, it is precisely the unsteadiness of that law — a quality fostered, not meliorated, by Blonder-Tongue — that prevents me from attaining the majority’s certainty that a test case will be “superior.” The apparent erosion of the mutuality requirement is an incipient development, not a fait accompli, and thus serves as a shaky foundation for an outright reversal of the district court’s class determination. Rather, Blonder-Tongue generates only one consideration among many to be weighed by the district court.
e.
In my judgment, too, the Court should take this opportunity to dispose of the appellant’s prime contention: that Congress intended to prohibit enforcement of the Truth in Lending Act (the Act) by way of class actions. The other dissenting opinions are correct, I think, in maintaining that the effect of the Act upon the class determination is a problem that may not be circumvented at this stage of the ease, especially when this issue has already been briefed and argued.
The Act provides for the recovery, in private actions, of twice the amount of any finance charge that is proved to have been illegally undisclosed.3 However, the award in such an action may not exceed $1,000, nor amount to less than $100 4 The Act makes further provision for the award of an attorney’s fee to successful plaintiffs, thus creating “a species of ‘private attorney general’ to participate prominently in enforcement.” 5
The district court did not consider whether Congress intended to forbid class enforcement of the disclosure requirements of the Act. Carte Blanche, of course, argues strenuously that Congress did manifest such an intent. The majority declines to consider the question, apparently on the ground that any opinion on the matter would be rendered advisory should the district court determine that “actual damages” may be recovered, since, “there is no suggestion that Congress intended to prohibit the recovery of actual damages in a class action.”
This decisional reticence is puzzling. Whether “actual damages” or only the minimum $100 damages are sought, the arguments advanced by Carte Blanche in favor of the absolute preclusion of a class action are, in my judgment, equally pertinent. First, Carte Blanche contends that class enforcement is inconsistent with the section of the Act providing for the recovery of attorney’s fees. Second, Carte Blanche maintains that a class recovery under the Act might be so large as to be completely unjust. The impact of each of these arguments is undiminished by the fact that “actual” damages — by which is meant, presumably, something greater than the $100 minimum- — may be recoverable in this action.6 Thus, to guide the district court in its class determination, we should lay to rest all claims that the Act absolutely prohibits, or invariably permits, class enforcement.
There is little support in the legislative history for the proposition that Congress intended to bar all class action enforcement of the Act. True, Senator Moss of Utah, an active proponent of the Truth in Lending legislation, did re*775mark at a hearing that “I do not believe class actions are permissible under Truth-in-Lending.”7 Assistant Attorney General (now Judge) McLaren, in direct response to Senator Moss, expressed the contrary opinion. He stated that the private right of action provided in the Act was subject to the Federal Rules of Civil Procedure and so amenable to class action treatment.8 This scant background offers an inadequate basis for ruling that class enforcement of the Act is absolutely proscribed. Still less does this history warrant the conclusion that class treatment is always appropriate. To accept Carte Blanche’s contention, therefore, or to accept the converse, “would be a work of clairvoyance and not of construction or interpretation.” 9
Without attempting to conjure up the myriad situations that might occur where class action treatment would be appropriate or inappropriate, it is sufficient to remark that in exercising the “considerable discretion of a pragmatic nature” conferred by the “broad and open ended terms” 10 of Rule 23, a district court should pay close attention to the Act’s provisions, and to the potential effect of a class recovery in a Truth in Lending case.
Rule 23(b)(3), under which the class determination in this case was and will be made, permits the maintenance of a class action if, inter alia, a district court:
“Finds . . . that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” 11
The majority reverses the district court’s finding of “superiority,” and orders postponement of the class action determination until the question of liability has been settled. There is, in my view, no basis for such a ruling. The proper course would appear to be to remand, giving the district court the benefit of our views on the appropriate factors to be considered in its “superiority” investigation. This conclusion — that remand, not outright reversal, is called for —proceeds from the “broad and open-ended terms” of Rule 23, and the generous discretion vested thereby in the district court.12
Upon such remand or, in any event, when the class action determination is finally made, there are considerations emanating directly from the Truth in Lending Act which should bear upon the district court’s inquiry into superiority.
First, it must be noted that the litigative incentive often provided by the class action, through the aggregation of small claims into one large enough to call *776forth the financing requisite to the institution of suit, is, in this case, furnished by the Act’s provision for a “reasonable attorney’s fee.” The attorney’s fee is recoverable by any victorious plaintiff, irrespective of whether he seeks the minimum $100 award or some larger amount. Thus, while it may be conceded that the private class action often serves the useful function of inducing citizens to institute socially beneficial litigations, it certainly appears that this goal has been well-served by the provision in the Act for attorney’s fees. Accordingly, the class action is not necessarily “superior” to an individual action, at least insofar as such superiority might derive from the incentive to bring suit.
Second, if this case is allowed to proceed as a class action, the class might include as many as 700,000 or 800,000 members, or the number of Carte Blanche cardholders.13 Were such a class to be victorious on the merits, the recovery in this action might run as high as $80,000,000, even if only minimum damages were sought by each plaintiff. Such a liability could conceivably bankrupt the defendant, and force it to cease operation. This prospect of a “horrendous, possibly annihilating punishment” 14 for a technical violation of the Act is certainly a relevant consideration in any inquiry into the “superiority” of a class action as a means of enforcing the statute.
These two factors, then — the existence of the attorney fee provision, and the crippling. impact of the potential class recovery — should, at the very least, be weighed in the district court’s exercise of the discretion conferred by Rule 23. Numerous other courts, in a variety of circumstances, have ruled that Truth in Lending claims may not be pursued as class actions. Such courts have perceived a similar confluence between the provisions of the Act and the considerations specified by Rule 23(b)(3).15 The very nature of Rule 23 prevents me from saying that the district court must conclude that a class action will not be a “superior” method of adjudicating this controversy.16 Nonetheless, the effect of the Act is such that a finding of “superiority” would seem unlikely, at least from this vantage.
d.
As noted by the commentators, Rule 23 confides to the district courts a broad range of discretion and managerial latitude regarding class actions.17 It is they, rather than the appellate courts, who must provide the creative imagination necessary to make the Rule workable. There are numerous factors, some already considered, some not, which the district court in this case should have the prime responsibility of evaluating: Rule 23(c) (l)’s directive that a class action determination be made as “soon as practicable;” the attorney’s fee provision of the Act; the potentially stultifying impact of a class recovery; the alternative of a test case;18 the possibility that some plaintiffs may be barred by *777the statute of limitations;19 and other considerations dictated by the express terms of Rule 23.
In short, as previously indicated, the district court, not this Court, is the appropriate forum for the resolution of the question whether this particular case should, at this time, go forward as a class action.
e.
Thus, I would reverse the decision of the district court and remand for a new class action determination.
. That the class action question is reviewable under 1292(b) is made particularly clear by Professor Kaplan, in Continuing Work of the Civil Committee — 1966 Amendments to the Federal Rules of Civil Procedure (1), 81 Harv.L.Rev. 356, 390 n. 131 (1967), and by the Report of the ABA Special Committee on Federal Rules of Procedure, 38 F.R.D. 95, 104-05 (1965). The ABA Special Committee stated that, “[W]e should be disturbed, however, if the change in the form of [Rule 23] caused the Courts to determine that there was no ‘controlling question of law,’ but only questions of ‘discretion’ not subject to review under Subdivision (b) of Section 1292 of Title 28.”
. “[A] court conducting an action cannot predetermine its res judicata effect .... [T]his can be tested only in a subsequent action.” C. Wright, Federal Courts, 314 (2d ed. 1970).
. 15 U.S.C. § 1640 (a)(1).
. Id. A separate award may be recovered, of course, in connection with each consumer credit transaction in which any illegal nondisclosure occurs.
. Ratner v. Chemical Bank New York Trust Co., 329 F.Supp. 270, 280 (S.D.N.Y.1971).
. The only damages recoverable in a TILA action are double the plaintiff’s actual damages, except when actual damages exceed $500 (in which case only $1000 may be recovered) or are less than $50 (in which case $100 may be recovered).
. Hearings before the Consumer Subcommittee of the Senate Committee on Commerce on S. 2246, S. 3092, 91st Cong., 1st & 2nd Sess., ser. 91-43, pt. 1, at 27 (1970).
. Id.
. Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336, 344 (l0th Cir. 1973), wherein the court also ruled that there might be class action enforcement of the Act.
. Ratner v. Chemical Bank New York Trust Co., 54 F.R.D. 412, 416 (S.D.N.Y.1972).
. Rule 23 states that “matters pertinent” to a finding of superiority include:
“(A) The interest of members of the class in individually controlling the prosecution or defense of separate actions ;
(B) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(O) The desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(D) The difficulties likely to be encountered in the management of a class action.”
. Ratner, supra Note a, 54 F.R.D. at 416. See also Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39 (1967) ; Note, Proposed Rule 23: Class Actions Reclassified 51 Va.L.Rev. 629, 642, 650-60 (1965). Judge Aldisert, dissenting, appears to approach this view when lie says “if every class action grant or denial were certified under § 1292(b) the appellate courts would be swamped by the second-guessing process of class determination which I view predominantly sounding in fact, rather than in law.”
. This fact — the enormity of the potential class' — proceeds from the nature of the business as well as from the structure of the Act, in that a violation thereof can normally be expected to have been committed against all, or a large number, of the credit card holders of a company such as Carte Blanche.
. Ratner, supra, Note 9, 54 F.R.D. at 416.
. See, e. g., Ratner, supra Note 9; Graybeal v. American Savings and Loan Ass’n., 59 F.R.D. 7 (D.D.C.1973); Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336 (10th Cir. 1973). Compare Kristiansen v. John Mullins & Sons, Inc., 59 F.R.D. 99 (E.D.N.Y.1973).
. See Note 11, supra, and accompanying text.
. See Frankel, supra, Note 11, 43 F.R.D. at 39.
. As the Advisory Committee’s Note to Rule 23 suggests, “one or more actions agreed to by the parties as test or model actions may be preferred to a class action. . . . ” See also Eisen v. Carlisle and Jacquelin, 391 F.2d 555, 572 (2d Cir. 1962) (dissenting opinion of Lumbard, C. J.).
. Though the Supreme Court has stated, in American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the action been permitted to continue as a class,” there may yet be circumstances under which the statute will bar individual actions. In American Pipe certain class members, as to whom the statute was held tolled, had made motions to intervene under Rule 24 after the district court had decided against maintenance as a class action. This circumstance may or may not obtain in this case.