                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


IN RE: WILLIAMS-SONOMA, INC.;            No. 19-70522
WILLIAMS-SONOMA ADVERTISING,
INC.; WILLIAMS-SONOMA DTC, INC.,
______________________                      D.C. No.
                                         3:16-cv-01421-
WILLIAMS-SONOMA, INC., a                     WHO
Delaware corporation, DBA Pottery
Barn, DBA Williams-Sonoma, DBA
Williams-Sonoma Home;                      OPINION
WILLIAMS-SONOMA ADVERTISING,
INC., a California corporation;
WILLIAMS-SONOMA DTC, INC., a
California corporation,
                          Petitioners,

                  v.

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
CALIFORNIA, SAN FRANCISCO,
                     Respondent,

WILLIAM RUSHING, Individually
and on Behalf of all Others Similarly
Situated,
              Real Party in Interest.
2                IN RE: WILLIAMS-SONOMA, INC.

         Appeal from the United States District Court
              for the Northern District of California
        William Horsley Orrick, District Judge, Presiding

             Argued and Submitted October 2, 2019
                   San Francisco, California

                       Filed January 13, 2020

    Before: Ferdinand F. Fernandez and Richard A. Paez,
     Circuit Judges, and Jennifer Choe-Groves,* Judge.

                   Opinion by Judge Fernandez;
                      Dissent by Judge Paez


                            SUMMARY**


                Writ of Mandamus / Discovery

    The panel granted Williams-Sonoma Advertising, Inc.’s
petition for a writ of mandamus, and ordered the district court
to vacate a pre-class-certification discovery order that
directed Williams-Sonoma to produce a list of California
customers who had purchased certain bedding products.




    *
     The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              IN RE: WILLIAMS-SONOMA, INC.                   3

    William Rushing brought an underlying action
against Williams-Sonoma to recover damages that he
allegedly suffered due to Williams-Sonoma’s alleged
misrepresentations about thread count on bedding he
purchased. Before a class action was certified, the district
court determined that Kentucky law governed Rushing’s
claim and that Kentucky consumer law prohibited class
actions. The district court granted Rushing’s request to
obtain discovery from Williams-Sonoma for the purpose of
aiding his counsel’s attempt to find a California customer
who purchased similar bedding.

    In determining whether to issue mandamus relief, the
panel applied the Bauman v. U.S. Dist. Court, 557 F.2d 650,
656-661 (9th Cir. 1977), factors. The panel held that
Supreme Court authority demonstrated clear error in the
district court’s decision. The panel held that the Supreme
Court has determined that seeking discovery of the name of
a class member (here an unknown person, who could sue
Williams-Sonoma) was not relevant within the meaning of
Fed. R. Civ. P. 26(b)(1), which limits the scope of discovery.
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353
(1978). The panel concluded that the district court clearly
erred as a matter of law when it ordered the discovery in
question, and the balance of factors weighed in favor of
granting the writ of mandamus.

    Judge Paez dissented because in his view the district court
had not erred, let alone committed the clear error required for
the extraordinary remedy of mandamus relief.
4                 IN RE: WILLIAMS-SONOMA, INC.

                               COUNSEL

P. Craig Cardon (argued), Robert J. Guite, and Benjamin O.
Aigboboh, Sheppard Mullin Richter & Hampton LLP, San
Francisco, California, for Petitioners.

Kathryn Honecker (argued) and Jonathan Udell, Rose Law
Group, PC, Scottsdale, Arizona; Amber L. Eck and Robert D.
Prine, Haeggquist & Eck, LLP, San Diego, California;
George Richard Baker, Baker Law, PC, Los Angeles,
California; for Real Party in Interest.

No appearance for Respondent.

Timothy G. Blood and Paula R. Brown, Blood Hurst &
O’Reardon, LLP, San Diego, California, for Amicus Curiae
Consumer Attorneys of California.


                               OPINION

FERNANDEZ, Circuit Judge:

    Williams-Sonoma, Inc., Williams-Sonoma DTC, Inc., and
Williams-Sonoma Advertising, Inc. (collectively “Williams-
Sonoma”) petition for a writ of mandamus1 ordering the
district court to vacate a pre-class-certification discovery
order that directed Williams-Sonoma to produce a list of
California customers who had purchased certain bedding
products. The purpose of the discovery was to enable
opposing counsel to find a lead plaintiff to pursue a class


    1
        28 U.S.C. § 1651(a).
                  IN RE: WILLIAMS-SONOMA, INC.              5

action against Williams-Sonoma under California law. We
grant the petition.

                          BACKGROUND

    William Rushing, a resident and citizen of the State of
Kentucky, allegedly purchased bedding from Williams-
Sonoma, and an important reason for his doing so was based
upon the advertised thread count. Williams-Sonoma said that
the thread count was 600 threads per square inch, but Rushing
allegedly later discovered that it was actually much lower
than that. Thus, he brought an action against Williams-
Sonoma to recover damages under the law of the State of
California that he allegedly suffered due to Williams-
Sonoma’s alleged misrepresentations. He also sought
damages under California law for a class of consumers who
bought bedding from Williams-Sonoma due to the selfsame
alleged misrepresentations.

    Before a class action was certified,2 the district court
determined, inter alia, that Kentucky law governed Rushing’s
claims and that Kentucky consumer law prohibited class
actions. Rushing gave notice that he would pursue his
personal claims under Kentucky law, but sought to obtain
discovery3 from Williams-Sonoma for the sole purpose of
aiding his counsel’s attempt to find a California purchaser of
bedding from Williams-Sonoma who might be willing to sue.
The district court obliged, and to that end ordered Williams-
Sonoma to produce a list of all California customers who
purchased bedding products of the type referred to in


   2
       See Fed. R. Civ. P. 23(c)(1)(A).
   3
       See Fed. R. Civ. P. 26, 33.
6             IN RE: WILLIAMS-SONOMA, INC.

Rushing’s complaint since January 29, 2012. Williams-
Sonoma’s request for leave to file a motion for
reconsideration was denied; this petition followed.

                       DISCUSSION

     Williams-Sonoma seeks a writ of mandamus to avoid the
strictures of the district court’s discovery order. In deciding
whether to issue a writ of mandamus we apply the Bauman
factors, which we have described as follows:

       (1) The party seeking the writ has no other
       adequate means, such as a direct appeal, to
       attain the relief he or she desires.

       (2) The petitioner will be damaged or
       prejudiced in a way not correctable on appeal
       ....

       (3) The district court’s order is clearly
       erroneous as a matter of law.

       (4) The district court’s order is an oft-repeated
       error, or manifests a persistent disregard of
       the federal rules.

       (5) The district court’s order raises new and
       important problems, or issues of law of first
       impression.

SG Cowen Sec. Corp. v. U.S. Dist. Court, 189 F.3d 909, 913
(9th Cir. 1999) (alteration in original) (citation omitted);
Bauman v. U.S. Dist. Court, 557 F.2d 650, 656–661 (9th Cir.
1977). Not all of those factors need to be satisfied, and all
                 IN RE: WILLIAMS-SONOMA, INC.                           7

must be “weighed together” on a case-by-case basis. See SG
Cowen, 189 F.3d at 913–14; Admiral Ins. Co. v. U.S. Dist.
Court, 881 F.2d 1486, 1491 (9th Cir. 1989). In considering
the factors, we keep in mind the drastic and extraordinary
nature of that remedy, and the fact that Williams-Sonoma has
the weighty burden of convincing us to prescribe it. See Van
Dusen v. U.S. Dist. Court (In re Van Dusen), 654 F.3d 838,
840–41 (9th Cir. 2011); see also United States v. Guerrero,
693 F.3d 990, 999–1000 (9th Cir. 2012); SG Cowen, 189 F.3d
at 913.

     In any event, “[b]ecause we have held that ‘the absence of
factor three—clear error as a matter of law—will always
defeat a petition for mandamus,’”4 we will address that factor
first. We are mindful that we do not generally find clear error
when there is no prior Ninth Circuit authority prohibiting the
district court’s action. See Morgan v. U.S. Dist. Court (In re
Morgan), 506 F.3d 705, 713 (9th Cir. 2007); cf. Barnes v. Sea
Haw. Rafting, LLC, 889 F.3d 517, 537 (9th Cir. 2018)
(holding that when an “‘important issue of first impression’”
is raised, the standard is ordinary error).

    In the present case, contrary Supreme Court authority
demonstrates the clear error in the district court’s decision.
Rule 26(b)(1) limits the scope of discovery to “nonprivileged
matter that is relevant to any party’s claim or defense.” And
the Supreme Court has determined that seeking discovery of
the name of a class member (here an unknown person, who
could sue Williams-Sonoma) is not relevant within the
meaning of that rule. As the Court held:



     4
       Sussex v. U.S. Dist. Court (In re Sussex), 781 F.3d 1065, 1071 (9th
Cir. 2015).
8         IN RE: WILLIAMS-SONOMA, INC.

        The general scope of discovery is defined
    by Fed. Rule Civ. Proc. 26(b)(1) as follows:

           “Parties may obtain discovery
       regarding any matter, not privileged,
       which is relevant to the subject matter
       involved in the pending action,
       whether it relates to the claim or
       defense of the party seeking discovery
       or the claim or defense of any other
       party . . . .”

    The key phrase in this definition—“relevant to
    the subject matter involved in the pending
    action”—has been construed broadly to
    encompass any matter that bears on, or that
    reasonably could lead to other matter that
    could bear on, any issue that is or may be in
    the case. . . .

        At the same time, “discovery, like all
    matters of procedure, has ultimate and
    necessary boundaries.” . . . Discovery of
    matter not “reasonably calculated to lead to
    the discovery of admissible evidence” is not
    within the scope of Rule 26(b)(1). . . .

        Respondents’ attempt to obtain the class
    members’ names and addresses cannot be
    forced into the concept of “relevancy”
    described above. The difficulty is that
    respondents do not seek this information for
    any bearing that it might have on issues in the
    case. . . . If respondents had sought the
               IN RE: WILLIAMS-SONOMA, INC.                    9

        information because of its relevance to the
        issues, they would not have been willing, as
        they were, to abandon their request if the
        District Court would accept their proposed
        redefinition of the class and method of
        sending notice. Respondents argued to the
        District Court that they desired this
        information to enable them to send the class
        notice, and not for any other purpose. Taking
        them at their word, it would appear that
        respondents’ request is not within the scope of
        Rule 26(b)(1).

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350–53,
98 S. Ct. 2380, 2389–90, 57 L. Ed. 2d 253 (1978) (footnotes
omitted). The Court then concluded: “[W]e do not think that
the discovery rules are the right tool for this job.” Id. at 354,
98 S. Ct. at 2391 (footnote omitted); see also Reed v. Bowen,
849 F.2d 1307, 1313–14 (10th Cir. 1988) (power of the court
should not be used to solicit clients); Douglas v. Talk Am.,
Inc., 266 F.R.D. 464, 467–68 (C.D. Cal. 2010) (same). There
are two distinctions between the case at hand and
Oppenheimer, but both cut against the district court’s
decision here.

    One of those distinctions is that Rule 26(b)(1) was
amended to its current form after 1978 when Oppenheimer
was decided. As quoted above, the rule then indicated that
discovery must be “relevant to the subject matter involved in
the pending action” that related to a party’s claim or defense.
Now, the “subject matter” reference has been eliminated from
the rule, and the matter sought must be “relevant to any
party’s claim or defense.” Rule 26(b)(1). That change,
however, was intended to restrict, not broaden, the scope of
10                IN RE: WILLIAMS-SONOMA, INC.

discovery. See Rule 26(b)(1) advisory committee’s note to
2000 amendment; see also id. advisory committee’s note to
2015 amendment; cf. Elvig v. Calvin Presbyterian Church,
375 F.3d 951, 967–68 (9th Cir. 2004).

    The other distinction is that Oppenheimer dealt with a
case where class certification had already been granted, and
the moving party sought to obtain a list of members of that
class. This case is a step removed from that—here counsel is
without a lead plaintiff for the class issues that counsel
wishes to pursue, so no class has been certified. It follows
that the request here is less relevant than the request in
Oppenheimer. The district court clearly erred as a matter of
law when it ordered the discovery in question.

    Rushing contends that the information sought in
discovery was relevant to class certification issues, such as
commonality, typicality, ascertainability, and reliance. That
does not undercut, or water down, the primary point that
using discovery to find a client to be the named plaintiff
before a class action is certified is not within the scope of
Rule 26(b)(1). Oppenheimer, 437 U.S. at 353, 98 S. Ct. at
2390. In short, the district court clearly erred when it decided
otherwise.5


     5
       By the way, the district court also erred to the extent that it applied
California discovery rules. It was required to apply the Federal Rules of
Civil Procedure regarding discovery, which, of course, included the
restrictions upon granting discovery under those rules. See Fed. R. Civ.
P. 26(b)(1) (hereafter, Rule 26(b)(1)); id. at 81(c)(1); Gasperini v. Ctr. for
Humanities, Inc., 518 U.S. 415, 427 & n.7, 116 S. Ct. 2211, 2219 & n.7,
135 L. Ed. 2d 659 (1996); Bearint ex rel. Bearint v. Dorell Juvenile Grp.,
Inc., 389 F.3d 1339, 1352–53 (11th Cir. 2004); Vess v. Ciba-Geigy Corp.
USA, 317 F.3d 1097, 1103 (9th Cir. 2003); Metabolife Int’l, Inc. v.
Wornick, 264 F.3d 832, 845–46 (9th Cir. 2001).
                  IN RE: WILLIAMS-SONOMA, INC.                          11

     As to the first Bauman factor, Williams-Sonoma has no
other adequate means for relief available to it at this time,6
and before a direct appeal could be taken and heard, the
disclosure and damage to its (and its customers’) interests
would be complete—its claim would be mooted.7 Thus, the
first and second factors weigh in favor of granting the
petition.

    We are unable to say that the district court’s error was one
that is oft-repeated, or that it is a novel issue.8 Thus, “the
fourth and fifth Bauman factors do not weigh in favor of
granting the petition.” Tillman, 756 F.3d at 1153.

    The balance of the factors weighs in favor of granting the
writ of mandamus. See id.; Hernandez v. Tanninen, 604 F.3d
1095, 1101–02 (9th Cir. 2010); cf. San Jose Mercury News,
Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1099–1100, 1103 (9th
Cir. 1999).

   Therefore, we grant the petition for a writ of mandamus
and vacate the district court’s discovery order.

    Petition GRANTED.




    6
      See SG Cowen, 189 F.3d at 913; Admiral Ins. Co. v. U.S. Dist.
Court, 881 F.2d 1486, 1491 (9th Cir. 1989).
    7
        See SG Cowen, 189 F.3d at 914.
    8
      Because the Court has so clearly spoken, we cannot call the issue
one of first impression. If it were one, it would weigh in favor of granting
the petition. See United States v. Tillman, 756 F.3d 1144, 1150, 1153 (9th
Cir. 2014).
12            IN RE: WILLIAMS-SONOMA, INC.

PAEZ, Circuit Judge, dissenting:

    Mandamus is an extraordinary remedy—among “the most
potent weapons in the judicial arsenal”—and one we must not
resort to absent clear error. Cheney v. U.S. Dist. Court for
D.C., 542 U.S. 367, 380 (2004) (quoting Will v. United
States, 389 U.S. 90, 107 (1967)); see also Bauman v. U.S.
Dist. Court, 557 F.2d 650, 658–60 (9th Cir. 1977). In my
view, the district court has not erred, let alone committed
“clear and indisputable” error. Cheney, 542 U.S. at 381
(quotation marks omitted). I therefore respectfully dissent.

    The majority relies on the Supreme Court’s decision in
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), to
hold that the district court’s discovery order is legally
incorrect. As I read Oppenheimer, however, it stands for a
much narrower proposition. The Court held only that once a
district court certifies a class action, class counsel must rely
on the class action procedures outlined in Federal Rule of
Civil Procedure 23—and not the federal discovery rules
contained in Rules 26 through 37—to notify absent class
members of certification. Oppenheimer did not hold that
plaintiffs cannot seek the identities and contact information
of absent class members for a different purpose before the
class is certified, as here.

    But even if the federal discovery rules do not authorize
the district court’s order, that still leaves Rule 23, which
broadly empowers the district court to take measures
necessary to maintain a class action, protect the interests of
putative class members, and provide notice to absent class
members when necessary to protect their interests.
Oppenheimer certainly did not narrow the scope of Rule 23
and, indeed, relied on it.
              IN RE: WILLIAMS-SONOMA, INC.                   13

    The majority points to no clear legal error or abuse of
discretion by the district court. And even if the court’s order
were questionable, our intervention is unnecessary.
Mandamus, under these circumstances, is not warranted.

                               I.

   I begin with Oppenheimer. There, the plaintiffs sought to
pursue a class action against an investment fund. 437 U.S. at
342–44. The district court certified the class under Rule
23(b)(3), which triggered mandatory notice to absent class
members under Rule 23(c)(2). See id. at 346; Fed. R. Civ. P.
23(c)(2)(B). The thrust of the dispute was which party must
pay the costs of identifying and notifying the unnamed class
members. Oppenheimer, 437 U.S. at 349–64. The district
court ordered the defendants to do so. Id. at 346.

    The Second Circuit reversed. It reasoned that the
Supreme Court’s decision in Eisen v. Carlisle & Jacquelin
(Eisen IV), 417 U.S. 156 (1974), required the plaintiffs, and
not defendants, to pay because “the identification of class
members is an integral step in the process of notifying them.”
Oppenheimer, 437 U.S. at 347. On rehearing en banc,
however, the Second Circuit affirmed the district court’s
order, holding that Eisen IV did not necessarily govern the
issue because the plaintiffs could rely on alternative
procedural rules to obtain the same information: the federal
discovery rules. Id. (citing Sanders v. Levy, 558 F.2d 636,
649–50 (2d Cir. 1976) (en banc)). The en banc court
concluded that the district court had not abused its discretion
in allocating the costs of notice to the defendants. Id. (citing
Sanders, 558 F.2d at 646).
14             IN RE: WILLIAMS-SONOMA, INC.

     The Supreme Court disagreed. The Court began by
emphasizing that Rule 26 only allows a party to seek
materials “relevant” to the subject matter of any claim or
defense. Id. at 350–51. The Court reasoned that the
plaintiffs’ procedural obligation to comply with the Rule
23(c)(2) notice obligations did not, by itself, relate to the
subject matter of a claim or defense under Rule 26. Id. at
352–54. The “critical” issue, according to the Court, was that
plaintiffs “sought [the information] to facilitate the sending
of notice rather than to define or clarify issues in the case.”
Id. at 350. The “proper[]” channel to accomplish this
purpose, the Court held, was Rule 23(d)—the “natural place
to look for authority for orders regulating the sending of
notice.” Id. at 350, 354. The Court reasoned that this rule
“vests power in the district court to order one of the parties to
perform the tasks necessary to send notice.” Id. at 354. In
reversing, the Court expressly left open the possibility that
Rule 26 could be used to obtain the same information when
it is relevant to other issues in the case. Id. at 354 n.20 (“We
do not hold that class members’ names and addresses never
can be obtained under the discovery rules.”); id. at 353 n.18
(“The difference between the cases relied on by [plaintiffs]
and this case is that [plaintiffs] do not seek information
because it may bear on some issue which the District Court
must decide, but only for the purpose of sending notice.”); see
also id. at 351 & n.13 (noting that discovery is not “limited to
the merits of a case” such as, for example, when “issues arise
as to jurisdiction or venue”).

    The present case is markedly different than Oppenheimer.
Unlike in Oppenheimer, Plaintiff’s action has not yet been
certified under Rule 23(c), and Plaintiff does not necessarily
seek to provide notice. Plaintiff’s counsel instead seeks to
substitute the named class representative with one who has
                IN RE: WILLIAMS-SONOMA, INC.                         15

standing under California law. Whether the federal discovery
rules may be used for this purpose is an open question.
Indeed, the majority does not point to any case that has
clearly addressed it. To answer this question, the majority
asks whether the absent class member names and contact
information is “relevant”1 to a “party’s” claim or defense.
Fed. R. Civ. P. 26(b)(1). While the majority reads
Oppenheimer to hold that it is not, I do not read Oppenheimer
so strictly. In any event, we need not resolve that question at
this stage: the sole issue before us is whether the district
court’s discovery order is so clearly wrong that our
intervention is necessary. Because neither Oppenheimer nor
our court’s precedent dictates otherwise, I do not believe that
it is.

                                  II.

    Even if Oppenheimer foreclosed use of the federal
discovery rules to aid the identification of class member
names and contact information, its reasoning suggests another
basis for the district court’s order: Rule 23.            See
Oppenheimer, 437 U.S. at 354. Rule 23(d) provides district
courts with “substantial residual powers” to regulate
communications with absent class members outside of formal
notice requirements. William B. Rubenstein, 3 Newberg on
Class Actions § 9:2 (5th ed.) (citing, among others, Rule



    1
      Contrary to the majority’s suggestion, relevance continues to have
a broad meaning, even after the 2000 Amendments to the procedural rules.
See Alan Wright & Arthur R. Miller, 8 Fed. Prac. & Proc. Civ. § 2008 (3d
ed.) (“Most courts which have addressed the issue find that the [2000]
amendments to Rule 26 still contemplate liberal discovery, and that
relevancy under Rule 26 is extremely broad.”) (quotation marks omitted).
16               IN RE: WILLIAMS-SONOMA, INC.

23(d)(1)(A)).2 That is because class actions are a form of
representative litigation, and, before certification, counsel
“may wish to advise potential plaintiffs of their rights and
encourage their involvement in a class suit, to seek helpful
evidence from them, or simply to inform them of the status of
the litigation.” Id. § 9:6. The ability to communicate with
members of the class is acutely important given the fiduciary
duties that class counsel owes unnamed class members.
6 Newberg on Class Actions § 19:2 (5th ed.); see also Koby
v. ARS Nat’l Servs., Inc., 846 F.3d 1071, 1079 (9th Cir. 2017)
(acknowledging fiduciary obligations owed to absent class
members before certification); In re Gen. Motors Corp. Pick-
Up Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768, 801
(3d Cir. 1995). And “[s]ince identification simply is another
task that must be performed in order to” communicate to
potential plaintiffs their rights and encourage their
involvement in a class suit, it was reasonable for the district
court “to require [Williams-Sonoma’s] cooperation” to cull
that list. See Oppenheimer, 437 U.S. at 355.

      Likewise, Rule 23(d)(1)(B)(i) authorizes district courts to
order that class members be notified of “any step in the
action” to “protect class members.”3 The district court’s
ruling that the sole named plaintiff no longer had standing
under California law is, certainly, a “step in the action.” And
it is a step that, without some protective measure, would harm

     2
     Rule 23(d)(1)(A), for example, authorizes a court to issue orders that
“determine the course of the proceedings or prescribe measures to prevent
undue repetition or complication in presenting evidence or argument.”
Fed. R. Civ. P. 23(d)(1)(A).
     3
      The advisory committee describes the reasons to provide notice
under Rule 23(d) as “non-exhaustive.” See Fed. R. Civ. P. 23(d)(2)
advisory committee’s note to the 1966 amendment.
                  IN RE: WILLIAMS-SONOMA, INC.                           17

class members’ interests in at least one significant way. For
example, when a class action is filed, putative class members
enjoy a tolling of the statute of limitations until certification
is denied or the case is resolved. See Am. Pipe & Constr. Co.
v. Utah, 414 U.S. 538, 553–54 (1974). In an action that has
been pending for almost three years, the putative class
members’ interests in keeping the suit alive would well be
jeopardized, absent notice.4

    The district court thus acted well within its authority by
facilitating class counsel’s attempts to communicate with
absent class members and to notify them of important
developments in the lawsuit. Because the district court’s
order was a “matter . . . committed to discretion, it cannot be
said that [Williams-Sonoma’s] right to a particular result is
clear and indisputable.” See Allied Chem. Corp. v. Daiflon,
Inc., 449 U.S. 33, 36 (1980) (per curiam) (quotation marks
omitted). I would thus deny the petition for a writ of
mandamus. I respectfully dissent.



    4
       That notice is provided to allow absent class members to intervene
or otherwise keep the suit alive is hardly controversial. See Rule
23(d)(1)(B)(iii); Wright & Miller, 7B Fed. Prac. & Proc. Civ. § 1793
(3d ed.) (“Indeed, it has been held that [Rule 23(d)(1)(B)] may be invoked
to send notice to putative class members to intervene when the original
plaintiff representative moves to strike the class allegations and settle his
individual claim or when the class certification is denied.”); see also
1 Newberg on Class Actions § 2:17 (“Once a class complaint is filed, but
certainly following certification, Rule 23 is designed to assure that the
rights of absent class members are not prejudiced by the voluntary actions
of the representative plaintiff. Accordingly, when mootness of the named
plaintiff’s claims occurs after initiation of the suit or certification, the
procedures inherent in Rule 23 enable some effort to bolster representation
or to find some suitable substitute class representative, following notice
to all or part of the class.”).
