United States: En Banc 9th Circuit Holds Class Action Certification Is Different For Settlement Classes

  • En banc 9th Circuit affirmed a $210 million settlement in multidistrict litigation against Hyundai and Kia relating to their alleged misrepresentations about the fuel efficiency of their vehicles, reversing the decision of a split 9th Circuit panel vacating the class settlement because of potential variations in state laws.
  • The court held that variations in state laws did not necessarily defeat predominance for class settlement purposes.
  • The court held that the predominance analysis for class certification is different for settlement and trial; its holding reaffirms that nationwide classes can be approved for settlement purposes, even where the same class could not be certified for litigation purposes, due to variations in state law.


Fifty-six actions were brought against Hyundai and Kia arising from alleged misstatements regarding the fuel efficiency of their vehicles in advertisements and car window stickers. The actions were consolidated in the Central District of California.

The district court preliminarily certified a settlement class and approved the settlement agreement, holding that a choice-of-law analysis was not warranted in the settlement context because these issues could be addressed as part of the final fairness hearing under Rule 23(e). The district court gave final approval to the $210 million class settlement after holding a fairness hearing, and did not address choice-of-law issues in its final order approving the settlement. Many objectors promptly appealed to the 9th Circuit, asserting challenges to the settlement in light of differences in state law and adequacy of the class representatives and their counsel.

A split 9th Circuit panel vacated the district court's final settlement approval order. It held that under Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), before the district court could approve a class action settlement, the court was required to decide whether common questions predominate by applying California's choice-of-law rules to determine whether California law applied to the claims of all plaintiffs or whether the court had to apply the different consumer protection laws of each state.

En Banc Ninth Circuit Opinion

In an 8-3 decision, the 9th Circuit en banc reinstated the district court's approval of the $210 million settlement.

The 9th Circuit explained that the predominance of common questions criterion for class certification is applied differently to settlement classes and litigation classes. It noted that "[i]n deciding whether to certify a litigation class, a district court must be concerned with manageability at trial." By comparison, "such manageability is not a concern in certifying a settlement class where, by definition, there will be no trial."

Accordingly, the en banc court rejected the argument that the district court was required to address variations in state law under Mazza. Rather, it explained that "a court adjudicating a multistate class action is free to apply the substantive law of a single state to the entire class," unless an objector meets the burden of demonstrating that foreign law should apply to class claims.

The 9th Circuit held that the objectors did not meet their burden under California's three-step governmental interest test. The court noted that "no objector presented an adequate choice-of-law analysis or explained how, under the facts of this case, the governmental interest test's three elements were met." Likewise, "no objector argued that differences between the consumer protection laws of all fifty states precluded certification of a settlement class." Consequently, the court found that "neither the district court nor class counsel were obligated to address choice-of-law issues beyond those raised by the objectors" and refused to "decertify a class action for lack of such analysis."

The court also rejected the dissent's "suggest[ion] that the district court must sua sponte survey the law of all fifty states," noting that "no case law support[ed] this unduly burdensome task." The 9th Circuit distinguished Mazza because the foreign law proponent there met its burden by "exhaustively detail[ing] the ways in which California law differs from the laws of the 43 other jurisdictions" and showed how applying the facts to those disparate state laws made "a difference in this litigation." The court further explained that "the Mazza class was certified for litigation purposes," and thus the need to apply th­e laws of dozens of jurisdiction weighed against predominance because of the impact it would have on trial manageability. The en banc court found that the predominance of common questions analysis is different in the settlement context, where "the district court need not consider trial manageability issues."

The 9th Circuit also rejected the objectors' challenges to the adequacy of class counsel and settlement approval, finding that the notice to class members provided sufficient information, the claims forms were not overly burdensome and there was no evidence of collusion between class counsel and the automakers.

Lastly, the court held that the district court did not abuse its discretion in denying fees to objector's counsel because he did not "meaningfully contribute" to the class settlement.


Judge Sandra Ikuta argued that the district court committed a reversible error in certifying the settlement class because the district court erroneously assumed that a choice-of-law analysis was not necessary to determine predominance of common questions in the class settlement context. She disagreed with the majority's emphasis on the absence of manageability concerns being of key importance, because Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997), required courts to give "undiluted, even heightened, attention" to all Rule 23 prerequisites, including predominance of common questions, before certifying a class.


The 9th Circuit's decision affirms that nationwide class settlements can be approved in federal court, and that differences in state substantive law do not present a per se obstacle to approval under Rule 23. If objectors do not effectively raise the issue, a court will not need to compare sua sponte the consumer protection laws of all 50 states; and even if objectors meet their burden of showing differences in state law, the trial court may still conclude those differences do not preclude Rule 23 certification, because class certification for settlement does not implicate the same trial manageability issues that Mazza considered. Critically, the en banc court's decision applied only to class certification in settlement, and does not materially affect Mazza's use in arguing against predominance in class certification for trial.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions