                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 05-3428
DELVIN C. PAYTON, et al.,
                                            Plaintiffs-Appellants,
                                 v.

COUNTY OF CARROLL, et al.,
                                           Defendants-Appellees.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 99 C 8514—Elaine E. Bucklo, Judge.
                          ____________
    ARGUED JUNE 7, 2006—DECIDED JANUARY 18, 2007
                     ____________


  Before BAUER, RIPPLE, and WOOD, Circuit Judges.
   WOOD, Circuit Judge. When a person is arrested in
Illinois, he or she is arraigned, and when possible, the
court releases the detainee either on bail or on personal
recognizance. See Illinois Bond Statute, 725 ILCS 5/110-2
(own recognizance); 5/110-4 (bailable offenses). (In People
v. Purcell, 778 N.E.2d 695 (Ill. 2002), the Illinois Supreme
Court held unconstitutional the part of this statute that
governs bail for capital defendants. Id. at 700. This hold-
ing has no effect on the present case.) In addition, Illinois
sheriffs are entitled to charge detainees an administrative
fee for the privilege of posting a 10 percent bond with the
sheriff (rather than, say, the county clerk). 55 ILCS 5/4-
2                                               No. 05-3428

5001 [¶ 8] (“Fee Act”). The fee is $1, id., unless the county
justifies a higher fee through an acceptable cost study, id.
at ¶ 39.
  The present appeal is a sequel to an earlier one we
heard, in which a putative class of former arrestees
challenged those administrative fees on a variety of
constitutional grounds. See Payton v. County of Kane, 308
F.3d 673 (7th Cir. 2002) (Payton I). In our earlier decision,
we held (1) that the named plaintiffs had standing to
sue the particular counties in which they had been de-
tained; (2) that there was no standing bar to the proposed
class actions against DuPage and Kane Counties; and (3)
that before the court could decide whether the suit could
proceed against the other 17 counties plaintiffs had
named, it had to resolve the question of class certification.
On remand, the district court first dismissed 12 of the 13
counts in the Fourth Amended Complaint, which named
as defendants 39 Illinois counties and relevant officials. It
preserved only the claim that the Fee Act violates the
Equal Protection clauses of the United States and Illinois
Constitutions, for the reason that the bond fee is not the
same throughout the state. Next, the court found that
a statewide class action was not warranted because of
lack of typicality. See FED. R. CIV. P. 23(a)(3). Without a
statewide class, the court found, the named plaintiffs
lacked standing to pursue the remaining claim against the
37 other counties (apart from DuPage and Kane) and their
officials. The court accordingly entered judgment under
Rule 54(b) permitting all of the case except the claims
against DuPage and Kane counties to be appealed immedi-
ately.
  Plaintiffs urge strenuously that the district court’s
dismissal of the 12 counts flouted this court’s opinion in
Payton I, which they read as a definitive holding that
they had stated a claim for purposes of Rule 12(b)(6). They
also argue that the court erred in denying the motion for
No. 05-3428                                               3

class certification and in granting summary judgment for
the 37 county defendants and associated officials. In our
view, however, plaintiffs have read too much into our
earlier opinion. We conclude that the district court prop-
erly followed our mandate, that it correctly dismissed the
12 counts at issue here, and that it did not abuse its
discretion in denying class certification. We therefore
affirm.


                             I
  With respect to the plaintiffs’ challenge to the district
court’s ruling on the motion to dismiss, our review is of
course de novo. County of McHenry v. Ins. Co. of the West,
438 F.3d 813, 817 (7th Cir. 2006). Our review of the court’s
decision to deny class certification is for abuse of discre-
tion. Mace v. Van Ru Credit Corp., 109 F.3d 338, 340 (7th
Cir. 1997). As the background facts in this case are
uncontested, we proceed immediately to a consideration
of the plaintiffs’ arguments on appeal.


                            A
  We first take up the 12 counts that were dismissed for
failure to state a claim upon which relief may be granted.
Because there is some duplication of theory among those
counts, we have grouped them here into five different
categories.


  1. Count I: Excessive Bail
  The Fourth Amended Complaint, which is the one that
now governs the case, alleges in Count I that the Fee Act
violates both the Eighth Amendment’s prohibition on
excessive bail and the rule of Art. I, § 9 of the Illinois
4                                               No. 05-3428

Constitution, which guarantees bail except in cases of
serious offenses where a court determines that there is
a risk to public safety. The district court rejected the
Eighth Amendment argument on the ground that the fee
here was a de minimis administrative charge that could
not, as a matter of law, be deemed “excessive.” It found
that it was immaterial that this fee is paid upon release
from custody, rather than upon the return of the deposit
following appearance at trial, as in Schlib v. Kuebel, 404
U.S. 357 (1971). The court also pointed out that Illinois
arrestees have alternatives to paying the fee. For example,
they may pay the clerk rather than the sheriff, in which
case the fee does not apply. Illinois judges have the
power to adjust bail to compensate for the fee, if this
would make a meaningful difference. Moreover, arrestees
may seek bail reduction to free up funds to pay the fee.
The district court did not address the state constitu-
tional argument separately, nor has anyone done so in
the briefs before this court. That argument is therefore
waived.
  As the district court recognized, the Supreme Court’s
decision in Schlib has some bearing on this case. There,
the Court upheld an earlier Illinois bail law that permit-
ted the court clerk, upon the conclusion of the trial, to
retain as “bail bond costs” 1 percent of the specified bail or
10 percent of the amount actually deposited. Schlib, who
had posted $75 to secure bonds of $500 and $250 on two
charges, was acquitted at trial on one and convicted on
the other. When his bond was returned, the clerk deducted
$7.50 for administrative costs. Schlib sued, claiming that
the statute permitting this fee violated both the Due
Process and the Equal Protection Clauses of the Four-
teenth Amendment. The Supreme Court was unpersuaded.
It held that the right to be free from a minor administra-
tive cost like this was not fundamental and thus that
rational basis review applied. From that, it was an easy
No. 05-3428                                               5

step to uphold Illinois’s decision to impose the fee, as
well as its decision not to impose a fee in the distinguish-
able circumstances of release on personal recognizance
and payment of the full amount of the bail. See 404 U.S.
at 367-68. The Court noted that it did not have any
question about the Eighth Amendment before it. Id. at
364-65.
   The Eighth Amendment issue came before the Fifth
Circuit in the case of Broussard v. Parish of Orleans, 318
F.3d 644 (5th Cir. 2003). For guidance, that court turned
first to the Supreme Court’s decision in Stack v. Boyle,
342 U.S. 1 (1951). There, the Court held that:
    [l]ike the ancient practice of securing the oaths of
    responsible persons to stand as sureties for the ac-
    cused, the modern practice of requiring a bail bond
    or the deposit of a sum of money subject to forfeiture
    serves as additional assurance of the presence of an
    accused. Bail set at a figure higher than an amount
    reasonably calculated to fulfill this purpose is “exces-
    sive” under the Eighth Amendment.
Id. at 5. The Fifth Circuit also looked to the Supreme
Court’s later decision in United States v. Salerno, 481 U.S.
739 (1987), which dealt with the constitutionality of
federal bail reform legislation. In that opinion, the Court
underscored the fact that the amount charged for bail
depends on what is at stake:
    Nothing in the text of the Bail Clause limits permissi-
    ble Government considerations solely to questions of
    flight. The only arguable substantive limitation of the
    Bail Clause is that the Government’s proposed con-
    ditions of release or detention not be “excessive” in
    light of the perceived evil. Of course, to determine
    whether the Government’s response is excessive, we
    must compare that response against the interest the
6                                               No. 05-3428

    Government seeks to protect by means of that re-
    sponse.
Id. at 754.
  In Broussard, the Fifth Circuit observed that the case
before it “concern[ed] neither the State’s attempt to deny
bail nor an extremely high bail amount. Rather, it con-
cerns relatively modest fees imposed, over and above the
amount of bail, on all arrestees who exercise bail.” 318
F.3d at 651. Although the court conceded that the fees
did not advance a compelling interest like public safety,
it pointed out on the other hand that “[i]t is also clear
that the restriction . . . does not implicate the kind of
excessiveness of past decisions.” Id. The deprivation
imposed by the fees, in short, was “more theoretical than
actual,” in the absence of any evidence of an arrestee
who was otherwise able to make bail but who could not
because of the administrative fee. Id.
  We see the Illinois system in much the same way. The
arrestees claim that the administrative fees infringe on
their federally protected right to bail, and they point to
one statement in Payton I where we said it is “hard to see
how they could have failed to state a claim under the
notice pleading regime of [Rule 8].” 308 F.3d at 676. They
distinguish Schlib on the ground that the fee there was
imposed after trial, while theirs is a condition of pre-trial
release. Their comment on Broussard is that the Louisiana
statute at issue there provided for “remedies and proce-
dures not available under the Illinois statute.” Finally,
they complain that the Illinois fees are arbitrary, cause
a delay in release, are discretionary from county to
county, sometimes prevent people from leaving jail, are
not returned if one is found innocent, and cannot be
waived.
  The panel expressed interest in the last of these points,
and in response to a question from the bench, the parties
No. 05-3428                                                 7

have filed supplemental memoranda on the question
whether Illinois law provides a means to waive the
administrative fee. That research and our own reveals that
at one time, the Illinois Code of Criminal Procedure
explicitly permitted an incarcerated defendant who owed
a fine or costs that he could not pay to file an affidavit
to that effect and be released with a waiver of the amount
due. See 38 Ill. Rev. Stat. ¶ 180-6 (1972) (repealed by P.A.
80-741, § 1, eff. Oct. 1, 1977). It is unclear, and ultimately
not important, whether that former statute would have
applied to the fees present here. The county defendants
argue that under existing law, there are at least two
ways by which an indigent defendant may obtain a waiver
of the fee. They rely primarily on Illinois Supreme Court
Rule 298(b), which permits an indigent person to re-
quest and obtain the right “to sue or defend without
payment of fees, costs, or charges.” Secondarily, they
argue that Illinois courts have inherent authority to
waive costs for indigent defendants, citing People ex rel.
Conn v. Randolph, 219 N.E.2d 337, 340 (Ill. 1966) (dealing
with inherent power to order reimbursement of costs
advanced by attorneys for indigent litigants); People v.
Wilson, 453 N.E.2d 949, 952-54 (Ill. App. Ct. 1983) (requir-
ing payment of certain litigation costs for indigent defen-
dant as a matter of inherent power); People v. Rhode, 580
N.E.2d 612, 614-15 (Ill. App. Ct. 1991) (awarding fees to
pay for the services of an investigator to assist an indigent
defendant). Plaintiffs take issue with this, noting that
Rule 298 appears in a section of the Illinois Supreme
Court’s rules dealing with civil proceedings, that none of
the court’s rules directly pertaining to bail mention
waivers of these fees, and that the inherent power cases
are distinguishable.
  Interesting though this question of state law is, we
conclude that we have no need to resolve it here. First, as
the district court pointed out, Illinois courts enjoy con-
8                                              No. 05-3428

siderable discretion in setting the amount of bond to begin
with. The indigent defendant will care about the sum of
the amount that must be posted to obtain release and the
amount of the administrative fee, not how much each
component is. Thus, we agree with the district court that
even apart from Rule 298 and inherent power, the state
courts are able to address the problem of the indigent
defendant. Second, we were told at oral argument that the
practice of at least some counties was to release detainees
who made bail and then to collect the administrative fee.
To the extent that is the case, the fee is not part of the
bail at all, and thus the Eighth Amendment is not impli-
cated by the amount of the fee. We assume for the sake
of argument, however, that at least some counties may
insist that the fee be paid prior to the detainee’s release,
and we consider the remainder of the plaintiffs’ argu-
ments in that light.
  Plaintiffs’ attacks on the system in Illinois fail for
several reasons. First, there is no indication that judges
set bail at the maximum point that would be non-exces-
sive, such that the addition of the modest administrative
fee tips the balance and makes the bail constitutionally
excessive. If, for example, bail of $1,000 is reasonable, it
would be absurd to say that bail of $1,001, or $1,050, is
automatically excessive. Second, Illinois law permits
detainees to file a motion for reduction of bail, 725 ILCS
5/110-6, which could be used if the final number were
indeed too high. As for the sentence in Payton I that the
plaintiffs have highlighted, the short answer is that
context matters. We were talking about the individual
claims against DuPage and Kane Counties, which are
still pending in the district court, and we did not specifi-
cally approve of the sufficiency of any particular count of
the complaint. Moreover, our holding was simply to
reverse the district court’s decision dismissing those
claims on the basis of standing. The court was free on
No. 05-3428                                                9

remand to consider the sufficiency of the pleadings, once
the standing barrier was out of the way. Finally, we find
the analysis in Broussard persuasive, at least on the
facial challenge we have here. We note that we do not
have before us a particular claim in which someone al-
leges that a sheriff has refused to release an individual
because he or she could not pay the fee. Such an “as
applied” case would have to be evaluated on its own facts.


  2. Counts II, III, and VIII: Due Process
  The district court dismissed these counts because it
concluded that “charging arrestees a fee in exchange for
providing a service simply does not implicate the Con-
stitution.” In addition, it recalled from its excessive bail
analysis that the fee is de minimis, that arrestees usually
have the alternative of paying their bond to the clerk
without the fee (assuming that the clerk’s office is open—a
qualification the plaintiffs believe is important), and that
arrestees may petition to have their bail reduced. The
plaintiffs do see a due process problem here: they assert,
in Count II, that the counties never established “policies,
procedures, waivers, hearings, or other process whereby
the Plaintiffs . . . may secure their pre-trial release with-
out paying the bond fees,” in violation of the federal and
state constitutions. Count III makes essentially the
same arguments with respect to the arrestees’ “property
interest in the bond fee paid to Defendants to secure
their pre-trial release” and focusing on the lack of pro-
cedures for obtaining a refund of the fee paid for those
who ultimately are found innocent or otherwise are
discharged. Count VIII adds the allegation that there is
no policy or procedure for those who post bond or obtain
release on personal recognizance, but do not have enough
for the fees, to obtain release.
  Although some of the arguments plaintiffs are present-
ing were not before the Supreme Court in Schlib, others
10                                             No. 05-3428

were. In Schlib, the Court found that the administrative
fee before it did not offend due process even though it
was imposed on both those who were convicted and those
who were acquitted. See 404 U.S. at 370-71. That is
enough to dispose of this part of the current plaintiffs’
claims. In Broussard, the Fifth Circuit found that given
“that the private interests at stake are not great, that
Schlib specifically rejected a fundamental rights implica-
tion of such fees, and that arrestees have failed to demon-
strate any actual deprivation,” the Louisiana fees “do not
trigger any heightened level of private interest.” 318 F.3d
at 655. It found that the state procedures were ade-
quate to protect whatever minimal interest existed, and
that the state had a valid claim for administrative fees
to defray its costs of running the bail-bond system. Taking
all of this into account, it rejected the due process argu-
ments.
  The same things can be said of the Illinois system before
us. We add that nothing in Payton I undermines this
conclusion. It is important, in this connection, not to
confuse standing analysis with analysis on the merits. We
found in Payton I that the named plaintiffs had stand-
ing to litigate whether a due process violation (and all the
other alleged violations) had occurred, not that any
particular part of the complaint was vulnerable to a
dismissal on Rule 12(b)(6) grounds. On this appeal, it
would have been prudent for the plaintiffs to have said
more about Mathews v. Eldridge, 424 U.S. 319 (1976) (the
case on which the Fifth Circuit had relied in Broussard,
and the case that establishes the general framework for
due process analysis), in addition to their brief acknowl-
edgment that it was cited in Broussard.
  Eldridge held that:
     identification of the specific dictates of due process
     generally requires consideration of three distinct
No. 05-3428                                                11

    factors: First, the private interest that will be affected
    by the official action; second, the risk of an erroneous
    deprivation of such interest through the procedures
    used, and the probable value, if any, of additional or
    substitute procedural safeguards; and finally, the
    Government’s interest, including the function involved
    and the fiscal and administrative burdens that the
    additional or substitute procedural requirement
    would entail.
424 U.S. at 335.
  Because our review is de novo, we have chosen to review
these factors despite plaintiffs’ lack of attention to them.
The private interest that is affected by the official action
here is the detainee’s liberty interest. Although, for the
reasons we have already given, we think it unlikely
that most people’s liberty interests are affected at all
by these fees, this case reaches us from a dismissal under
Rule 12(b)(6). It is not physically impossible that some-
one’s interests could be so affected, and plaintiff Payton
claims that exactly this happened to him: he was able to
assemble the $5,300 he needed for bail, but he could not
immediately raise the additional $33 he had to pay as
an administrative fee, and consequently he had to stay
in jail for two more hours. The second Eldridge factor
asks, in effect, what is the risk of an erroneous deprivation
and how additional procedures might reduce that risk. The
fact that there are other options for detainees such as
paying a county clerk (perhaps waiting for that office to
open), paying the bond in full, or putting down property
as collateral, indicates that the system as a whole con-
tains a number of safeguards against detention of people
who cannot afford this fee. Detention of the innocent is
not something that should be taken into account, since
the Supreme Court has said that the eventual outcome
of the case is immaterial. The opportunity to seek a
reduction in bail is the procedure currently available to
12                                              No. 05-3428

minimize whatever risk remains. Finally, the sheriffs have
a legitimate interest in recouping some of the costs of
administering the bail system. If they had to offer another
separate set of hearings devoted only to these small
administrative fees, they might opt out of the bail bond
process altogether—a step that Illinois would permit
them to take. Every detainee would then need to wait
for the office hours of the county clerk, rather than the
subset of detainees who now elect that option. We con-
clude that plaintiffs have not stated a claim for a depriva-
tion of due process.


  3. Count IV: Equal Protection
  The district court dismissed Count IV as duplicative of
Count VII, which it permitted to continue. The counties
point out that although the plaintiffs included Count IV in
their list of rulings covered by their appeal, they never
addressed it in their opening brief; that means, the
counties argue, that it is now waived. Plaintiffs seem to
agree with the district court’s assessment: Count IV is
somehow merged into Count VII, and thus nothing par-
ticular needs to be said about it here. The equal protec-
tion theory in Count IV contrasted those who must pay
the administrative fee with those who do not need to do so,
while Count VII claims that the bond fee is not equal
among all detainees, that the setting of bond is arbitrary
and capricious, and that the process irrationally treats
some detainees differently from others. The overlap
between Count IV and Count VII is obvious; we there-
fore will also treat anything in Count IV as covered by
Count VII.


  4. Counts V, VI, X: Unauthorized Collection of the Fee
  The district court had little to say about this part of the
case, holding only that these claims were not redressable
No. 05-3428                                              13

in federal court. It is true that all three on their face
seem primarily to raise state-law issues: Count V con-
tends that the county ordinances and policies were not
authorized by state law; Count VI asserts that before
January 1, 2000, Illinois law “neither authorized the
Sheriff of any county to receive a fee for taking bonds
in criminal cases nor authorized the Sheriff of any
county to collect a bond fee” or “to detain persons until a
bond fee is paid,” and that the 2000 state legislation is
impermissibly retroactive and violates the Eighth Amend-
ment; Count X alleges a violation of Illinois’s separation
of powers provisions, which are found in Article II, § 1 of
the state constitution.
  On appeal, plaintiffs focus on the retroactivity issue
and the effect of the 2000 legislation. To the extent that
Counts V and VI deal with whether the practice of col-
lecting an administrative fee was authorized prior to the
Fee Act and whether the Act was retroactive, we can
consider these arguments together. Illinois follows the
same rules as the federal system with respect to retroac-
tivity. See McGinley v. Madigan, 851 N.E.2d 709, 717-18
(Ill. App. Ct. 2006) (stating that Illinois follows Landgraf
v. USI Film Products, 511 U.S. 244 (1994)). Under
Landgraf, the court first looks to see whether the legisla-
ture clearly indicated what the temporal reach of the
new law should be. If no such clear indication exists, a
procedural change in the law may be applied retroac-
tively, but a substantive change will be prospective only.
In Taylor v. County of Peoria, 727 N.E.2d 700 (Ill. App. Ct.
2000), the court held that Peoria County’s decision to
increase the administrative fee from $1 to $15 did not
affect a vested right. Id. at 702. In so ruling, the court
said that “[a]mending the Counties Code and the Crim-
inal Code to allow for this fee does not implicate a vested
right, as the taxing of such a fee is procedural in nature.”
Id. We see no reason here to disagree with the state
14                                                No. 05-3428

court’s characterization of the law as one that creates
no vested rights. Nothing in the federal Constitution
prohibited the counties from changing the fees as they did.
  To the extent that these counts raised issues purely
under state law, the district court should have con-
sidered whether they fell within its supplemental juris-
diction. See 28 U.S.C. § 1367. Once it dismissed the fed-
eral claims, it should then have decided whether to dis-
miss the state-law issues without prejudice, or to retain
them and resolve them. Plaintiffs, however, have not
asked us to modify the judgment of the district court in
a way that would permit them to turn to the state
courts on the state-law claims, and we are not inclined to
do so without a proper request.


  5. Counts IX, XI, XII, XIII
  The district court also dismissed Counts IX (retroactiv-
ity) and XI (unlawful use of the funds collected to com-
pensate sheriff ’s office personnel) for lack of redressability.
It dismissed Count XII (funds illegally obtained and then
converted by defendants) because the plaintiffs did not
identify specific funds that had been converted, and it
dismissed Count XIII (request for injunction against the
Fee Act) because plaintiffs failed to establish that they
or others would suffer irreparable harm and had no
adequate remedy at law. The argument on appeal cover-
ing these four counts is exactly five lines long, with a few
extra sentences on Count XIII that merely reiterate the
uncontroversial proposition that sovereign immunity
does not shield state officials who act unconstitutionally
from an injunction. This is not enough to preserve these
issues here; they too are waived.
No. 05-3428                                               15

                             B
   As we had directed it to do, the district court on remand
took up the question whether it should certify a plain-
tiff class including the arrestees in all of the counties
other than DuPage and Kane. As part of that inquiry,
it considered whether the four subclasses requested by
the named plaintiffs were appropriate. It also looked
at whether a defendant class of all the counties in Illinois
should be created. Applying FED. R. CIV. P. 23(a), the court
decided that the commonality and numerosity require-
ments for a class were satisfied, but that typicality
was missing:
    The Act is no longer at the heart of this action; instead
    it is the allegedly unconstitutional implementation of
    the Act by counties each acting on its own interests
    and by means of it[s] own devising. It is undisputed
    that each county independently determined how much
    to charge, why, and under what circumstances.
    Whether an individual county did so in an arbitrary
    and capricious manner is therefore a question which
    must be answered on a county-by-county basis, and
    it is possible that some counties violated equal pro-
    tection standards and others did not. No plaintiff ’s
    claim could be, or is, typical of so broad a class as
    plaintiffs seek to establish.
Although the district court did not spell it out, one can
infer that the same reasoning lay behind its refusal to
certify the requested defendant class.
  Plaintiffs first argue that if we were to reverse the
district court’s dismissal of the 12 claims we have
already discussed, we would definitely need to order
class certification. We have decided, however, to affirm
that part of the district court’s judgment, and so we
turn to the second argument, which is that the court
erred when it refused to find that the named plaintiffs’
16                                              No. 05-3428

claims were typical of the claims of those arrested in all
37 counties. With respect to all counties, they continue, the
issue is “whether the Defendants arbitrarily and capri-
ciously set bond fees, treating the various Plaintiffs
differently and depriving them of equal treatment under
the law.” As for the proposed defendant class, plaintiffs
argue that since all of the counties in the state changed
their bond fees pursuant to the same statute, the Fee
Act, both commonality and typicality are satisfied. Any
differences between counties, they claim, are trivial.
  The counties respond that the plaintiffs presented no
evidence or affidavits in support of their class allegations,
contrary to this court’s recommendation in Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672 (7th Cir. 2001).
Furthermore, the counties argue, the claims are not
typical because the variance from county to county is
significant. For example, plaintiffs allege that in Kane
County arrestees are detained because they cannot pay
the bond fee, but affidavits from several other counties
indicate that arrestees are not detained if they can
make bail but are unable to pay the fee. In addition, the
counties point out, the named plaintiffs from DuPage
County were both acquitted, but they propose to represent
those who were convicted.
  In Payton I, we observed that “Rule 23(a) inevitably
requires consideration of the typicality of the claims
presented by the named parties (Rule 23(a)(3)), which
allows exploration of the question whether the essence
of the suit relates to the state statute or if the named
representatives’ claims are more particular to each
county.” 308 F.3d at 680. In Szabo, we acknowledged the
Supreme Court’s holding in General Telephone Co. v.
Falcon, 457 U.S. 147 (1982), that “similarity of claims
and situations must be demonstrated rather than as-
sumed.” 249 F.3d at 677. As the Supreme Court put it in
Falcon, “[s]ometimes the issues are plain enough from the
No. 05-3428                                             17

pleadings to determine whether the interests of the absent
parties are fairly encompassed within the named plain-
tiff ’s claim, and sometimes it may be necessary for the
court to probe behind the pleadings before coming to rest
on the certification question.” 457 U.S. at 160.
  Here, the district court did not abuse its discretion
in finding that the named plaintiffs’ claims were not
typical of those of plaintiffs detained in other counties.
Particularly because, at this stage, a court would have to
examine whether the individual county acted arbitrarily
and capriciously in setting its bond fee, whether it re-
leased people who made bond but did not pay the fee,
whether the judges effectively set bond and fees taking
into account the total financial burden on the arrestee,
and other individualized factors, the district court’s
conclusion that the prerequisites for either a plaintiff or
a defendant class were not met strikes us as entirely
reasonable. This conclusion makes it unnecessary for us
to comment on the various subclasses the plaintiffs
wanted to certify.


                            II
  For these reasons, we AFFIRM the judgment of the
district court dismissing all but Count VII from the Fourth
Amended Complaint, and refusing to certify any class
on Count VII with respect to the claims made against the
37 counties other than DuPage and Kane.
18                                       No. 05-3428

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—1-18-07
