observing that cases may be disposed of “on conduct complained of,” and whether the injury is redressable. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 55 (2d Cir. 2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)
How later courts described this case
- observing that cases may be disposed of “on conduct complained of,” and whether the injury is redressable. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 55 (2d Cir. 2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)
- recognizing that under the Act, Rule 23 cannot “ 'abridge, enlarge or modify any substantive right’ ”
- raising possibility that class may be divided into subclasses pursuant to Rule 23(c)(4) so as to minimize cost of notice borne by representative plaintiff
- “[Pjossible recoveries run into astronomical amount [and] generate more leverage and pressure on defendants to settle.... ”
Written by the judges who cited it.
The opinion
MANSFIELD, Circuit Judge:
I concur in Judge Kaufman’s opinion.
The issues raised by this appeal are of exceptional importance and therefore deserving of the most authoritative resolution possible. If the recent history of en banc proceedings in this Court is any indication, however, an en banc hearing would result in opinions expressing diverse views, necessitating ultimate resolution by the Supreme Court. See, e. g., Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir. 1972), reversed sub nom. Preiser v. Rodriguez, 411 U.S. 475 , 93 S.Ct. 1827 , 36 L.Ed.2d 439 (1973). In the meantime one year’s delay would be added to this already protracted proceeding. This predicament might be avoided by granting the petition and, with the case then before us de novo, invoking the Supreme Court’s jurisdiction through the rarely used procedure provided by 28 U.S.C. § 1254 (3), which empowers us sua sponte to certify grave questions to it for final decision where we believe the answers to be in doubt. See 28 U.S.C. Rules 28-29, Revised Rules of the Supreme Court (1973 Supp.); Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 728-729 , 49 S.Ct. 499 , 73 L.Ed. 918 (1929). However, since I am persuaded that the Supreme Court, in view of the far-reaching significance of the issues, will in all likelihood grant certiorari, I believe that such a procedure is unnecessary. Otherwise I would agree with Judge Oakes’ forceful plea for an en banc hearing.