Rule 23(b)(2) Cohesiveness and Indivisibility

Bennett Rogers*

Class actions under Federal Rule of Civil Procedure 23(b)(2) were designed to seek injunctive relief from federal courts.¹ This rule was implemented in 1966 to protect civil rights and anti-discrimination cases by providing a less burdensome and repetitive path for plaintiffs to have their “day in court.”² The rule itself has only two requirements: that the challenged conduct “appl[ies] generally to the class,” and that “final injunctive relief” is an appropriate remedy for the class.³ But as the landscape and attitude towards class actions evolved towards the end of the twentieth century, judges began adding additional requirements for 23(b)(2) certification. One notable requirement is that the class members must be “sufficiently cohesive to warrant adjudication by representation.”⁴ Cohesiveness is not found in the text of Rule 23 itself, yet the United States Supreme Court has consistently “imported” cohesiveness “into no less than three parts of the Rule.”⁵ It has done so without providing an adequate definition or workable standard, which has left lower courts both guessing at what cohesiveness means and approximating what the Supreme Court would consider in a 23(b)(2) cohesiveness analysis.⁶ Unsurprisingly, the lack of guidance has not only produced varying standards both amongst and between circuits,⁷ but also led some courts to flat out reject cohesiveness as an element for 23(b)(2) certification.⁸

This Note will first review the 1966 revisions to Rule 23 and identify the practical and theoretical implications that led to the cohesiveness doctrine. Next, it will examine how courts have applied and modified the doctrine over the last fifty years. These developments reveal that cohesiveness can be categorized into two groups: the pre-Amchem era and the post-Amchem era. Prior to the landmark decision in Amchem Products, Inc. v. Windsor,⁹ courts used cohesiveness to ensure that absent class members’ interests were adequately represented, particularly when the class sought monetary damages. But following Amchem, courts used cohesiveness to ensure that present class members shared similar characteristics and suffered a common injury to warrant class treatment and a properly tailored injunction. This Note will demonstrate that cohesiveness has evolved from a procedural safeguard that excused further notice and opt-out requirements to a limiting principle that mirrors predominance to find dissimilarities amongst class members.

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*Law Clerk to Judge José A. Cabranes, United States Court of Appeals for the Second Circuit. J.D., Notre Dame Law School, 2025; B.A., University of Notre Dame, 2020. Thanks to Jay Tidmarsh and Tladi Marumo for their comments and support. I also thank the members of the Notre Dame Law Review for their excellent editing. This Note received the 2025 Arthur Abel Memorial Competition Writing Award and was submitted as a J.D. candidate. All errors and opinions are my own.

1 See FED. R. CIV. P. 23(b)(2). While courts may grant injunctive relief for other classes, see, e.g., FED. R. CIV. P. (23)(b)(1)(B), Rule 23(b)(2) classes are “intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole, is appropriate.” FED. R. CIV. P. 23 advisory committee’s note to 1966 amendment.

2 See FED. R. CIV. P. 23 advisory committee’s note to 1966 amendment (“Illustrative are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”); see also David Marcus, Flawed but Noble: Desegregation Litigation and Its Implications for the Modern Class Action, 63 FLA. L. REV. 657, 661 (2011) (“Until 1966, judgments could bind and benefit absent class members only in specific, narrow instances, an infirmity that made class action practice largely a backwater. Desegregation litigation, in which black plaintiffs invariably relied on Rule 23, was an exception.” (footnote omitted)).

3 See JAY TIDMARSH & ROGER H. TRANGSRUD, COMPLEX LITIGATION AND ITS ALTERNATIVES 186 (2d ed. 2018) (quoting FED. R. CIV. P. 23(b)(2)).

4 Barnes v. Am. Tobacco Co., 161 F.3d 127, 142 (3d Cir. 1998) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)).

5 Elizabeth Chamblee Burch, Constructing Issue Classes, 101 VA. L. REV. 1855, 1872 (2015).

6 See Robert G. Bone, The Misguided Search for Class Unity, 82 GEO. WASH. L. REV. 651, 686 (2014).

7 Contrast In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 75 (S.D.N.Y. 2002) (suggesting that because 23(b)(2) exists to remedy “group” injuries, the type of injury suffered by 23(b)(2) class members must be cohesive), with DDMB, Inc. v. Visa, Inc., No. 05-MD-1720, 2021 WL 6221326, at *42–44 (E.D.N.Y. Sep. 27, 2021) (holding that 23(b)(2) contains no cohesiveness requirement); contrast also Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 165 (2d Cir. 2001) (holding that 23(b)(2) classes can be certified when they request compensatory damages alongside their claim for non-monetary relief), abrogated on other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), with Allison v. Citgo Petrol. Corp., 151 F.3d 402, 414–17 (5th Cir. 1998) (holding that 23(b)(2) classes cannot be certified when they request compensatory damages).

8 See, e.g., Walters v. Reno, 145 F.3d 1032, 1045 (9th Cir. 1998); Senne v. Kan. City Royals Baseball Corp., 934 F.3d 918, 937 (9th Cir. 2019).

9 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).