The Ninth Circuit continues its efforts to give teeth to the predominance requirement of Rule 23 as a potent tool for defendants to defeat class certification. 

            Earlier this year, in Bowerman v. Field Asset Services, Inc., 39 F.4th 652 (9th Cir. 2022), amended, — F.4th —-, 2023 WL 2001967 (9th Cir. Feb. 14, 2023), the Ninth Circuit determined that where individualized inquiries were necessary to determine the existence of damages—as opposed to the question of calculating damages—class certification was inappropriate because the class would fail to meet the predominance requirement of Rule 23. 

            In Wit v. United Behavioral Health, 58 F.4th 1080 (9th Cir. Jan. 26, 2023), the Ninth Circuit continued the trend.  In Wit, the plaintiffs alleged that the defendant violated ERISA by reviewing claims for behavioral health services under health benefit plan in a manner that was inconsistent with its terms.  Id. at 1087-88.  The plaintiffs sought a class remedy of “reprocessing” of the class members’ claims under the plan.  Id. at 1089-90.  The district court certified the class, believing that individualized determinations about entitlement to damages would be irrelevant where the remedy sought is “reprocessing.”  Id. at 1090.

            The Ninth Circuit disagreed.  It viewed the plaintiffs’ framing of the class remedy as “reprocessing” as an end run around the commonality requirement of Rule 23, because “reprocessing” is “the means to the remedy that [the plaintiffs] seek,” not the remedy itself.  Id. at 1095 (emphasis in the original).  Because determining the actual remedy the plaintiffs sought—money due under the plan—requires “numerous individualized questions . . . in determining Plaintiffs’ entitlement to benefits given the varying Guidelines that apply to their claims and their individual medical circumstances,” the Ninth Circuit determined that individualized questions predominated over common ones, and therefore, class certification was inappropriate.  Id.Wit reflects the increasing potency of the predominance requirement of Rule 23 for defendants:  highlighting how the plaintiffs’ requested remedy will actually play out in reality can be a compelling tool in dismantling plaintiffs’ fiction of class remedy. 

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Photo of Gawon Go Gawon Go

Gawon Go is a litigation associate who represents a wide variety of clients in complex commercial litigation, including antitrust, contract, and intellectual property.

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.

Photo of Sonya Winner Sonya Winner

A litigator with three decades of experience, Sonya Winner handles high-stakes civil cases for clients in a wide range of industries, including banking, pharmaceuticals and professional sports. She has handled numerous antitrust and consumer disputes, many of them class actions, in state and…

A litigator with three decades of experience, Sonya Winner handles high-stakes civil cases for clients in a wide range of industries, including banking, pharmaceuticals and professional sports. She has handled numerous antitrust and consumer disputes, many of them class actions, in state and federal courts across the country.

Sonya’s cases typically involve difficult technical issues and/or complex legal and regulatory schemes. She is regularly able to resolve cases before the trial phase, often through dispositive motions. But when neither summary judgment nor a favorable settlement is an option, she has the confidence of her clients to take the case all the way through trial and on appeal. Her recent successes have included a cutting-edge decision rejecting a “true lender” challenge to National Bank Act preemption in a class action involving interest rates on student loans, as well as the outright dismissal of a putative antitrust claim against the National Football League and its member clubs asserting an unlawful conspiracy to fix cheerleader compensation.

Sonya has been recognized as a leading trial lawyer by publications like Chambers and the Daily Journal. She is chair of the firm’s Class Action Litigation Practice Group.