The Ninth Circuit continues its efforts to give teeth to the predominance requirement of Rule 23 as a potent tool for defendants to defeat class certification. 

            Earlier this year, in Bowerman v. Field Asset Services, Inc., 39 F.4th 652 (9th Cir. 2022), amended, — F.4th —-, 2023 WL 2001967 (9th Cir. Feb. 14, 2023), the Ninth Circuit determined that where individualized inquiries were necessary to determine the existence of damages—as opposed to the question of calculating damages—class certification was inappropriate because the class would fail to meet the predominance requirement of Rule 23. 

            In Wit v. United Behavioral Health, 58 F.4th 1080 (9th Cir. Jan. 26, 2023), the Ninth Circuit continued the trend.  In Wit, the plaintiffs alleged that the defendant violated ERISA by reviewing claims for behavioral health services under health benefit plan in a manner that was inconsistent with its terms.  Id. at 1087-88.  The plaintiffs sought a class remedy of “reprocessing” of the class members’ claims under the plan.  Id. at 1089-90.  The district court certified the class, believing that individualized determinations about entitlement to damages would be irrelevant where the remedy sought is “reprocessing.”  Id. at 1090.

            The Ninth Circuit disagreed.  It viewed the plaintiffs’ framing of the class remedy as “reprocessing” as an end run around the commonality requirement of Rule 23, because “reprocessing” is “the means to the remedy that [the plaintiffs] seek,” not the remedy itself.  Id. at 1095 (emphasis in the original).  Because determining the actual remedy the plaintiffs sought—money due under the plan—requires “numerous individualized questions . . . in determining Plaintiffs’ entitlement to benefits given the varying Guidelines that apply to their claims and their individual medical circumstances,” the Ninth Circuit determined that individualized questions predominated over common ones, and therefore, class certification was inappropriate.  Id.Wit reflects the increasing potency of the predominance requirement of Rule 23 for defendants:  highlighting how the plaintiffs’ requested remedy will actually play out in reality can be a compelling tool in dismantling plaintiffs’ fiction of class remedy.