This Note argues that past purchasers of a product have standing to pursue injunctive relief under Rule 23(b)(2). Part I discusses class actions and the current state of caselaw on false-labeling cases. I.A discusses the history of class actions generally, as well as the differing views on the purpose of Rule 23 throughout its history. I.B then provides background on standing, both generally and in the class action context. I.C explains the existing caselaw on standing for past purchasers, illustrating the looming circuit split on the issue. Part II then begins the argument portion of this Note. II.A argues that in the typical past purchaser case, all the requirements of Rule 23 are met, both the 23(a) prerequisites and the 23(b)(2) injunctive relief requirements. II.B will then argue that one can embrace both the procedural and regulatory conception of the class action, simultaneously. One can recognize the truth in the largely procedural conception of the rule while also recognizing that the Rule has come to serve a powerful regulatory purpose under certain circumstances where the regulatory role of the legislative and administrative branches is lacking. II.B uses the example of food-mislabeling cases to show where the class action can fill that gap. The Food and Drug Administration (FDA), the regulatory agency meant to police false labeling, is unable to fully police mislabeling due to the sheer volume of cases it faces. II.B explains how, when applied to past purchasers, the need to embrace the regulatory role becomes all the more clear because past purchasers in food-mislabeling cases have no other viable form of relief in federal courts.
The “Catch-22” of Rule 23(b)(2): Past Purchaser’s Standing to pursue Injunctive Relief,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol98/iss5/14