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Sixth Circuit Class Action Litigation | Winter 2019/2020

Faber v. Ciox Health, LLC, 944 F.3d 593 (6th Cir. 2019)

Sixth Circuit holds that an order granting a defendant’s motion for summary judgment – issued after class certification, but before class notice – binds only the named plaintiffs.

In a case alleging that the defendant, a medical records company, overcharged the plaintiffs for their medical records, the Sixth Circuit considered a relatively rare procedural question: What happens when a district court grants a defendant’s motion for summary judgment after the class has been certified but before class notice has been sent? The defendant argued that the panel should remand the case to the district court for the purpose of issuing opt-out notices, while the plaintiffs argued that the district court’s order should be limited to the named plaintiffs.

The panel agreed with the plaintiffs, holding that “[w]hen the defendant moves for and obtains summary judgment before the class has been properly notified, the defendant waives the right to have notice sent to the class, and the district court’s decision binds only the named plaintiffs.” The panel held that this “general rule” was supported by “Rule 23’s text and structure” because some of the Rule’s provisions – notice must inform class members that they may enter an appearance through an attorney, and a court may inform class members of the litigation process – are “largely pointless if a district court grants summary judgment before notifying the class.” The panel also held that post-judgment notice was not appropriate or equitable in this case because “class members would be prejudiced upon receiving notice of certification for a case they already lost on the merits.”

Even though the panel held that the district court’s order only applied to the named plaintiffs, it noted that its holding was “limited” to the scenario “[w]here a defendant moves for and obtains summary judgment before the absentee class members have been notified.” It also noted that the defendant “still obtained something valuable – a judgment in its favor on the merits that has been affirmed on appeal,” and that “principles of stare decisis (and possibly preclusion) will prove to be valuable assets for [defendant] should any absent class members choose to bring similar claims.”

Please see news from other circuits here: Class Action Litigation Newsletter | Winter 2019/2020

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 48


About this Author

Robert Herrington, Greenberg Traurig Law Firm, Los Angeles, Cybersecurity Litigation Attorney

Robert J. Herrington is an attorney in firm's Products Liability & Mass Torts Practice. He focuses his practice on defending consumer products companies in complex, multi-party litigation, including class actions, government enforcement litigation, product defect litigation and mass torts. Rob represents companies in a variety of industries, including apparel and footwear, retail, emerging technologies, consumer electronics, video game, telecommunications, advertising and publicity, online retailing, food and beverage, nutritional supplements, personal care products...

Stephen L. Saxl Class Action Attorney Greenberg Traurig

Stephen L. Saxl is the Co-Chair of the Class Action Litigation Group. He concentrates his practice on defending class actions and complex litigation matters in federal court and New York State courts. His class action experience includes cases in the securities, retail, telecommunications, publishing, insurance, Internet and tobacco industries. He has defended clients against statutory and common law claims including fraud, unfair trade practices, Racketeer Influenced and Corrupt Organizations (RICO), breach of contract and price-fixing.


  • Class actions
  • Complex civil litigation
  • Securities and broker-dealer litigation
  • Commercial litigation
  • Consumer litigation
  • Antitrust
  • Media
  • Privacy litigation
  • Product liability