United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued November 15, 2022 Decided April 4, 2023 No. 22-8001 IN RE: VALERIE R. WHITE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, ET AL., PETITIONERS On Petition for Permission to Appeal Pursuant to Federal Rule of Civil Procedure 23(f) (No. 1:16-cv-00856) Stephen R. Bruce argued the cause and filed the briefs for petitioners. Jonathan K. Youngwood argued the cause and filed the brief for respondents. Before: SRINIVASAN, Chief Judge, MILLETT, Circuit Judge, and EDWARDS, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge MILLETT. MILLETT, Circuit Judge: Valerie White, Eva Juneau, and Peter Betancourt sought class certification to pursue various claims against the Hilton Hotels Retirement Plan (“Hilton Plan”) for what they say are unlawfully denied vested retirement benefits. The district court ultimately denied certification on the ground that the plaintiffs had proposed an 2 “impermissibly ‘fail-safe’” class—that is, a class definition for which membership can only be ascertained through “a determination of the merits of the case,” In re Rodriguez, 695 F.3d 360, 369–370 (5th Cir. 2012). See White v. Hilton Hotels Ret. Plan, No. 16-00856, 2022 WL 1050570, at *4 (D.D.C. March 22, 2022) (hereinafter “White II”). For example, a class defined as “those shareholders whom Company X defrauded” would be fail safe. If the named plaintiffs prevail on the merits by showing fraud, then the class is populated by all those with meritorious claims; if the named plaintiffs fail to prove fraud, there will be no class members to be bound by the adverse judgment. White now seeks permission under Federal Rule of Civil Procedure 23(f) to appeal the district court’s decision denying certification of a class. Finding this case an appropriate one for interlocutory review under Rule 23(f), we hold that the district court erred in enforcing an extra-textual limitation on class actions when faithful enforcement of Rule 23’s specified terms and criteria for class actions would ensure the proper definition of a class early in the litigation that will be bound by a final judgment in the case. I A Federal Rule of Civil Procedure 23 governs class action litigation in the federal courts. Rule 23(a) sets out four threshold requirements that all proposed class actions must meet: numerosity, commonality, typicality, and adequacy of representation. See FED. R. CIV. P. 23(a); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997). 3 After passing that threshold, the proponents of a class must also show that the class qualifies as one of the three permitted types of class actions specified in Rule 23(b). See FED. R. CIV. P. 23(b)(1)–(3). A class can proceed under Rule 23(b)(1) if “prosecuting separate actions by or against individual class members” would cause confusion or in some way be impracticable. See FED. R. CIV. P. 23(b)(1). A Rule 23(b)(2) class is one that seeks declaratory or injunctive relief where “the party opposing the class has acted or refused to act on grounds that apply generally to …
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