In a recent decision, the Seventh Circuit answered a key question in Rule 23 commonality analyses: whether at the certification stage plaintiffs need to establish the terms of an allegedly common policy, or only its mere existence.  Ross v. Gossett, — F.4th —-, 2022 WL 1421315 (7th Cir. May 5, 2022).

The putative class consisted of all Illinois Department of Corrections inmates housed in April through July 2014 at four IDOC correctional centers.  They sued various IDOC officials for alleged constitutional violations stemming from prison-wide “shakedowns” executed by the defendants for purposes of sanitation and to discover and remove contraband.  They further alleged that the shakedowns were conducted pursuant to a single, unified policy across all four prisons. 


Although the defendants agreed that a policy existed, they disagreed with the plaintiffs’ allegations regarding the details of the policy.  (The plaintiffs’ alleged policy was unconstitutional, the defendants’ alleged policy was not.)  The defendants argued on appeal from the district court’s certification order that the district court needed to resolve the parties’ disagreement as to the details of the policy before it could certify a class.

The Seventh Circuit disagreed.  Because the defendants “concede[d] that the shakedowns were conducted according to a uniform plan created and implemented by the[m], and that the plan was executed in a uniform manner under their supervision,” the “issue as to the constitutionality of the policy is capable of a common answer applicable to all of the defendants.”  The question the defendants raised—whether the plaintiffs’ characterization of the policy’s terms was accurate—“is a merits question,” not one for the certification stage.  Put another way, “arguments as to the content of [a] uniform policy [are] not relevant to the class certification context, but rather would be appropriate in a motion for summary judgment.”  Once a plaintiff-class demonstrates the existence of a uniform policy, the path to establishing commonality may be easier.  Defendants litigating class actions should therefore be on the lookout for ways to prove that a uniform policy does not exist, rather than conceding (as the Ross defendants did) that a uniform policy does exist.

Photo of Andrew Leff Andrew Leff

Andrew Leff is an associate in the firm’s Washington, DC office. He is a member of the Litigation and White Collar Defense and Investigation practice groups.

Recently, Andrew was a key associate on a trial team that won total victory against the U.S.

Andrew Leff is an associate in the firm’s Washington, DC office. He is a member of the Litigation and White Collar Defense and Investigation practice groups.

Recently, Andrew was a key associate on a trial team that won total victory against the U.S. Government, as documented in The New York Times, Law360, and elsewhere. Andrew participated at every level of the pre-trial and trial phases, including a deposition of a key Government witness.