RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0088p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

THOMAS A. FOX, and all those similarly situated,

Plaintiff-Appellee,

v.

SAGINAW COUNTY, MICHIGAN, et al. (22-1265); ALCONA 

COUNTY, MICHIGAN, et al. (22-1272),

Defendants-Appellants.

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Nos. 22-1265/1272

Appeal from the United States District Court for the Eastern District of Michigan at Bay City.

No. 1:19-cv-11887—Thomas L. Ludington, District Judge.

Argued: January 11, 2023

Decided and Filed: April 28, 2023

Before: KETHLEDGE, READLER, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Douglas J. Curlew, CUMMINGS, MCCLOREY, DAVIS & ACHO, P.L.C., 

Livonia, Michigan, for Appellants in 22-1265. Matthew T. Nelson, WARNER NORCROSS + 

JUDD LLP, Grand Rapids, Michigan, for Appellants in 22-1272. E. Powell Miller, THE 

MILLER LAW FIRM, P.C., Rochester, Michigan, for Appellee. ON BRIEF: Douglas J. 

Curlew, CUMMINGS, MCCLOREY, DAVIS & ACHO, P.L.C., Livonia, Michigan, for 

Appellants in 22-1265. Matthew T. Nelson, WARNER NORCROSS + JUDD LLP, Grand 

Rapids, Michigan, Theodore W. Seitz, Kyle M. Asher, DYKEMA GOSSETT PLLC, Lansing, 

Michigan, Gregory M. Meihn, Matthew Wise, GORDON REES SCULLY MANUKHANI, 

Bloomfield Hills, Michigan, Charles A. Lawler, CLARK HILL, Lansing, Michigan, Frank 

Krycia, MACOMB COUNTY CORPORATION COUNSEL, Mt. Clemens, Michigan, for 

Appellants in 22-1272. E. Powell Miller, Sharon S. Almonrode, Christopher D. Kaye, THE 

MILLER LAW FIRM, P.C., Rochester, Michigan, Philip L. Ellison, OUTSIDE LEGAL 

COUNSEL PLC, Hemlock, Michigan, Matthew E. Gronda, St. Charles, Michigan, for Appellee.

>
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 2

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OPINION

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MURPHY, Circuit Judge. In this appeal, we must address how Article III’s “standing” 

requirements apply to class-action lawsuits. In individual litigation, a plaintiff lacks standing to 

sue a defendant if the plaintiff’s injuries are not “fairly traceable” to that defendant. 

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (citation omitted). Yet some courts 

have relied on the “juridical link” doctrine to jettison this standing element in the class setting. 

See, e.g., Payton v. County of Kane, 308 F.3d 673, 678–79 (7th Cir. 2002). According to these 

courts, that doctrine allows a named plaintiff in a putative class action to sue defendants who 

have not injured the plaintiff if these defendants have injured absent class members. 

This case shows how the doctrine is supposed to work. When a Michigan county 

forecloses on a property because its owner has failed to pay property taxes, Michigan law 

permits the county to obtain ownership of the property outright—even if its value exceeds the 

taxes owed. That fate befell Thomas Fox. After he racked up some $3,000 in unpaid taxes, 

Gratiot County took his land. He valued the property at over $50,000, and the county treasurer 

sold it for over $25,000. But Fox did not see any of the surplus. We have held that similar 

conduct amounted to an unconstitutional “taking.” Hall v. Meisner, 51 F.4th 185, 187–88 (6th 

Cir. 2022). Fox thus filed a class action against Gratiot County on behalf of himself and similar 

landowners. But Fox did not stop there. He also sued 26 other counties that did not injure him, 

arguing that they engaged in the same conduct against other delinquent taxpayers. The district 

court certified a class, holding that Fox had standing to sue these other counties under the 

juridical link doctrine.

We cannot agree. This oddly named doctrine conflicts with the Supreme Court’s 

precedent holding that a class-action request “adds nothing to the question of standing[.]” Simon 

v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 40 n.20 (1976). And Fox lacks standing to sue the 26 

other counties under normal rules. Nor has he justified the doctrine with historical evidence. 

Although the English Court of Chancery permitted parties to file class-like “bills of peace,” Fox 

cites no case in which a plaintiff pursued litigation on behalf of absent parties against a defendant 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 3

who had not harmed the plaintiff. The juridical link doctrine instead originates from dicta in a 

1973 case that expressed a desire for the “expeditious” resolution of disputes. La Mar v. H & B 

Novelty & Loan Co., 489 F.2d 461, 466 (9th Cir. 1973). But expediency concerns cannot 

supplant Article III’s separation-of-powers protections. Hollingsworth v. Perry, 570 U.S. 693, 

704–05 (2013). We thus vacate the certified class and remand for proceedings consistent with 

this opinion.

I

A

Since 1893, the Michigan General Property Tax Act has set the process that state actors 

must follow to collect overdue property taxes. See generally Mich. Comp. Laws §§ 211.1–.155; 

Act of June 1, 1893, No. 206, 1893 Mich. Pub. Acts 354. Historically, the Act permitted 

government officials to place tax liens on the properties of delinquent taxpayers and to auction 

off these liens. See Rafaeli, LLC v. Oakland County, 952 N.W.2d 434, 443 n.10 (Mich. 2020). 

But this process took years and left the titles of affected properties in disarray. See id. In 1999, 

the Michigan legislature overhauled the Act to promote the speedy “return” of delinquent 

properties to “productive” uses. Mich. Comp. Laws § 211.78(1); see Act of July 22, 1999, No. 

123, 1999 Mich. Pub. Acts 732. Today, the Act permits a “foreclosing governmental unit” to 

obtain ownership of these properties. Mich. Comp. Laws §§ 211.78(8)(a), 211.78k(6). Because 

the county treasurer is the “foreclosing governmental unit” in most counties, we will refer to this 

unit as the “county treasurer.” See Rafaeli, 952 N.W.2d at 443 n.11.

A county treasurer must treat property taxes as “delinquent” if a property owner has not 

paid them by the March after a tax year. Mich. Comp. Laws § 211.78a(2). The treasurer must 

send a series of notices to the taxpayer. See id. §§ 211.78b–211.78c, 211.78f. If, by the next 

March, the taxpayer still has not paid the taxes (along with any interest, penalties, and fees), the 

treasurer may treat the property as “forfeited.” Id. § 211.78g(1). Within three months of the 

forfeiture, the treasurer must petition a state court for a judgment that provides the treasurer with 

“absolute title” to the property. Id. § 211.78h(1); see Rafaeli, 952 N.W.2d at 444. The treasurer 

must give notice of this suit to all parties with a legal interest in the property. Mich. Comp. Laws 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 4

§ 211.78i(2), (5). The court then must hold a hearing and grant the treasurer “fee simple title” if 

the taxpayer has not justified the failure to pay the taxes. Id. §§ 211.78h(5), 211.78k(5)–(6).

After obtaining a property, a county treasurer must give the state and the relevant city or 

township an option to buy it. Id. § 211.78m(1). If these entities decline, the treasurer may sell 

the property at a foreclosure auction. Id. § 211.78m(1)–(2). The Act requires the treasurer to 

deposit the proceeds from all of a year’s sales into one account and to disburse these proceeds 

“in a specific order of priority.” Rafaeli, 952 N.W.2d at 445. The treasurer must first reimburse 

the relevant tax fund for the unpaid taxes. Mich. Comp. Laws § 211.78m(8)(a). Sometimes, 

though, a property sale will produce more money than the amount that a property owner owes. 

In that circumstance, the 1999 amendments to the Act did not originally “provide for any 

disbursement of the surplus proceeds to the former property owner[.]” Rafaeli, 952 N.W.2d at 

446. Instead, the amendments directed the treasurer to use the proceeds to pay for the costs of all 

foreclosure suits and to subsidize the county’s general fund. Id.

This scheme—which allows a treasurer to seize more of a landowner’s property than the 

amount that the landowner owed—has generated substantial litigation in state and federal court. 

Some landowners sought relief in state court under the Michigan Constitution’s takings clause. 

See id. at 441–42. The Michigan Supreme Court held that a treasurer’s failure to give a 

landowner the surplus proceeds from a foreclosure sale qualified as a taking under the state 

constitution. Id. at 449–64. Yet the court added a caveat to this holding. Id. at 465–66. It 

rejected the notion that the state constitution entitled a landowner to the fair market value of the 

property (minus the amount owed) if this value exceeded the price at the foreclosure sale. Id. It 

instead stated that a landowner could seek “no more” and “no less” than the surplus from that 

sale. Id. at 466.

In December 2020, the Michigan legislature responded to Rafaeli. It amended the Act to 

create a process by which landowners may seek these surplus proceeds. See Mich. Comp. Laws 

§ 211.78t. The amendment establishes different procedures for landowners to follow depending 

on whether a treasurer sold their properties before or after the Michigan Supreme Court decided 

Rafaeli. Compare id. § 211.78t(1)(a), (2)–(5), with id. § 211.78t(1)(b), (6).
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 5

Apart from state-court litigation, landowners have sued in federal court under the Fifth 

Amendment’s Takings Clause. Their efforts have taken a winding path. Before Knick v. 

Township of Scott, 139 S. Ct. 2162 (2019), the Supreme Court held that takings plaintiffs must 

exhaust their claims in state court. Id. at 2167. We dismissed some landowners on this ground. 

See Wayside Church v. Van Buren County, 847 F.3d 812, 817–22 (6th Cir. 2017). In Knick, 

however, the Court overruled this exhaustion mandate. 139 S. Ct. at 2167. Since then, we have 

held that neither exhaustion nor the Tax Injunction Act nor any other comity principle stands in 

the way of federal courts entertaining these claims. Freed v. Thomas, 976 F.3d 729, 734–41 (6th 

Cir. 2020).

We thus recently reached the merits in Hall. There, a county treasurer foreclosed on the 

properties of three landowners but did not auction them off as in Rafaeli. 51 F.4th at 189. 

Instead, the treasurer exchanged the properties to a city for amounts that the landowners owed. 

Id. The city then transferred the three properties to a private entity. Id. That entity kept one of 

the properties and sold the other two for prices well above the landowners’ liabilities. Id. We 

held that the treasurer violated the Takings Clause by confiscating properties whose fair market 

value exceeded the landowners’ tax obligations. Id. at 189–96. In the process, we disagreed 

with the “dictum” in Rafaeli that landowners had a property interest only in the surplus proceeds 

that a treasurer received at a foreclosure sale. Id. at 189. The sale in Hall had not generated any 

surplus because the treasurer had obtained from the city only the amounts that the landowners 

owed. Id. We found this fact irrelevant. Summarizing centuries-old principles, we concluded 

that landowners have a property interest in their “equitable title” to real estate and that the 

government may not transform private equity into public property merely by passing a law. Id.

at 190–96.

Since Hall, the Supreme Court has decided to review a similar takings question involving 

Minnesota’s foreclosure process. See Tyler v. Hennepin County, 143 S. Ct. 644 (2023). But the 

Court’s holding on this takings question will not affect the class-action issues that we confront 

here. So we see no need to wait for its decision to resolve this appeal.
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 6

B

In June 2019, as this state and federal litigation progressed, Fox brought this putative 

class action. He failed to pay taxes on property that he owned in Gratiot County. By February 

2017, the amount that Fox owed had reached $3,091.23. That month, the Gratiot County 

treasurer took Fox’s property using the Act’s processes. Months later, the treasurer sold it at an 

auction for $25,500. Yet Fox claims that his property had a fair market value of at least $50,400. 

He thus suggests that his equitable title in the property reached at least $47,308.77—the 

difference between his tax delinquency and the fair market value. The county treasurer did not 

pay him that surplus. Nor did the treasurer even pay him $22,408.77—the difference between 

his tax delinquency and the sale price at the auction.

Although Fox claimed that only Gratiot County and its treasurer had harmed him, he 

named 26 other counties and their treasurers as defendants. (We will generically refer to the 

defendants as the “Counties.”) Fox alleged that the Counties’ common practice of keeping all 

surplus equity in the properties of delinquent taxpayers amounted to an uncompensated taking in 

violation of the U.S. and Michigan Constitutions. He also alleged that this practice qualified as 

an excessive fine, that it violated procedural and substantive due process, and that the Counties 

had been unjustly enriched.

The district court stayed Fox’s case while we considered in Freed whether these types of 

claims could proceed in federal court. After the Michigan Supreme Court’s decision in Rafaeli, 

however, Fox moved to certify a class action under Federal Rule of Civil Procedure 23.

The district court granted Fox’s motion and certified a class. Fox v. County of Saginaw, 

2020 WL 6118487, at *1 (E.D. Mich. Oct. 16, 2020). The court recognized that Fox’s efforts to 

certify a class faced standing and discovery obstacles separate from Rule 23’s normal 

requirements. To begin with, Fox sought to certify a class of landowners from dozens of 

Counties that had not injured him, so he lacked standing to sue them under traditional principles. 

See id. at *4–5. The court overcame this problem using the “juridical link doctrine.” See id. It 

reasoned that Fox could sue all 27 Counties because they had all kept surplus proceeds pursuant 

to the Act and because the class members had all suffered the same type of injury. Id. at *6.
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 7

In addition, Fox sought to certify a class at an early stage before the Counties had taken 

class-certification discovery. The court found no need for discovery. It held that the existing 

record was “adequate” to show that it should certify a class action under Rule 23. Id.

Turning to Rule 23’s standards, the court held that Fox established Rule 23(a)’s four 

requirements: numerosity, commonality, typicality, and adequacy. As for numerosity, the court 

cited Fox’s public-records evidence identifying potentially thousands of foreclosed properties 

with fair market values exceeding the taxes owed. Id. at *7. As for commonality and typicality, 

the court reasoned that all class members presented the same liability question: Did the 

Constitution permit the Counties to keep the surplus proceeds? Id. at *8–9. As for adequacy, the 

court saw no conflict among Fox, his counsel, and the absent class members. Id. at *10.

The court next held that Fox had proved the predominance and superiority requirements 

for certifying a damages class under Rule 23(b)(3). It reasoned that Fox could obtain a common 

answer to the liability question using “generalized proof” for all class members. Id. It added 

that class litigation was superior to individual litigation because the small value of some of the 

landowners’ claims might prevent them from seeking relief absent a class action. Id. at *10–11.

Ultimately, the court defined the class as follows: “All persons and entities that owned 

real property” in the 27 Counties “whose real property, during the relevant time period, was 

seized through a real property tax foreclosure, which was worth and/or which was sold at tax 

auction for more than the total tax delinquency and were not refunded the value of the property 

in excess of the delinquent taxes owed[.]” Id. at *4. It did not identify the “relevant time 

period.” But Fox had sought to certify a class between 2008 and the end of this suit. See Mot., 

R.93, PageID 1286.

The district court later granted in part and denied in part the Counties’ motion to dismiss 

Fox’s (and now the class’s) complaint. See Fox v. County of Saginaw, 2021 WL 120855, at *16 

(E.D. Mich. Jan. 13, 2021). It rejected the Counties’ sovereign-immunity defense. Id. at *6–7. 

But it accepted the individual treasurers’ argument that qualified immunity protected them from 

liability, and it dismissed them from this suit. Id. at *7–8. On the merits, the court denied the 

Counties’ motion to dismiss the class’s federal and state takings claims, its procedural-due-
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 8

process claim, and its unjust-enrichment claim. Id. at *10–13, *14–16. The court dismissed the 

excessive-fine and substantive-due-process claims. Id. at *13–14, *15.

The Counties sought our review on two grounds. They appealed the order denying them 

sovereign immunity under the collateral-order doctrine. And they asked for permission to appeal 

the class-certification order under Federal Rule of Civil Procedure 23(f). We affirmed the denial 

of sovereign immunity but granted the Counties permission to appeal the class-certification order 

under Rule 23(f). See Fox v. Saginaw County, 2022 WL 523023, at *3–6 (6th Cir. Feb. 22, 

2022); In re Alpena County, 2022 U.S. App. LEXIS 8459, at *8 (6th Cir. Mar. 30, 2022) (order).

The Counties now raise two arguments in this Rule 23(f) appeal. They assert that Fox 

lacks standing to sue most of them. And they argue that he did not satisfy Rule 23’s 

requirements.

II. Standing

The Counties first assert that the district court could not certify the class because Fox 

lacks standing to sue all Counties other than Gratiot County. We review this standing question 

de novo. See Kanuszewski v. Mich. Dep’t of Health & Hum. Servs., 927 F.3d 396, 405 (6th Cir. 

2019).

A

At the outset, Fox claims that we lack appellate jurisdiction to consider this standing 

argument because Rule 23(f) permits us to review only the propriety of a class certification, not 

other legal issues. Both text and precedent prove him wrong. As a matter of text, the rule says 

that we “may permit an appeal from an order granting or denying class-action certification[.]” 

Fed. R. Civ. P. 23(f) (emphasis added). Rule 23(f) thus gives us jurisdiction to review the entire 

certification “order,” not just the parts analyzing Rule 23’s requirements. See BP P.L.C. v. 

Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1537–38 (2021); Yamaha Motor Corp., 

U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996). And here, the district court’s order certifying the 

class concluded that Fox had standing to sue all Counties. See Fox, 2020 WL 6118487, at *4–6.
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 9

As a matter of precedent, courts treat a standing question as “fair game” whether or not a 

class-certification order addresses it. In re E.I. DuPont de Nemours & Co. C-8 Pers. Inj. Litig., 

2022 WL 4149090, at *4 (6th Cir. Sept. 9, 2022); 16 Charles A. Wright et al., Federal Practice 

and Procedure § 3931.1, at 551–52 & n.31 (3d ed. 2012) (citing cases). That is because standing 

goes to a court’s subject-matter jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 

U.S. 83, 102–04 (1998). And a court has no power to certify a class if it lacks jurisdiction. See

Olden v. LaFarge Corp., 383 F.3d 495, 498 (6th Cir. 2004). Since a potential standing defect 

implicates the propriety of a class certification, we may—indeed must—consider that defect in 

any Rule 23(f) appeal. See Bertulli v. Indep. Ass’n of Cont’l Pilots, 242 F.3d 290, 294 (5th Cir. 

2001).

B

Our appellate jurisdiction secure, we turn to Fox’s standing. The Constitution permits 

federal courts to hear only “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. To bring a 

case or controversy within the meaning of Article III, a plaintiff must have “standing” to sue. 

See Ass’n of Am. Physicians & Surgeons v. U.S. Food & Drug Admin., 13 F.4th 531, 536–37 

(6th Cir. 2021). The Supreme Court’s standing test has three familiar requirements. See Lujan v. 

Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Plaintiffs must have suffered an injury. They 

must trace this injury to the defendant. And they must show that a court can redress it. See id.

If Fox had brought an individual suit, he would lack standing to sue most of the Counties 

under this test. Undoubtedly, when Fox’s property was foreclosed on and his equitable title 

taken, he suffered “tangible harms” that satisfy Article III’s injury element. TransUnion LLC v. 

Ramirez, 141 S. Ct. 2190, 2204 (2021). But a plaintiff who meets the “actual-injury 

requirement” does not thereby obtain a license to sue anyone over anything. See Lewis v. Casey, 

518 U.S. 343, 357 (1996). The plaintiff must show that the injury is “fairly traceable” to the 

defendant. Cuno, 547 U.S. at 342 (citation omitted). And Fox can trace his injury only to 

Gratiot County; he does not attempt to connect it to the other Counties. That fact poses a 

problem for him because standing is not dispensed “in gross.” Davis v. Colerain Township, 

51 F.4th 164, 171 (6th Cir. 2022) (quoting Cuno, 547 U.S. at 353). Just as a plaintiff’s standing 

to seek damages does not give the plaintiff standing to seek an injunction, see id., so too a 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 10

plaintiff’s standing to sue one defendant does not give the plaintiff standing to sue every other 

defendant. The plaintiff must tie the injury to each defendant. See Universal Life Church 

Monastery Storehouse v. Nabors, 35 F.4th 1021, 1031 (6th Cir. 2022); Disability Rts. S.C. v. 

McMaster, 24 F.4th 893, 900 (4th Cir. 2022); Daves v. Dallas County, 22 F.4th 522, 542 (5th 

Cir. 2022) (en banc); Calzone v. Hawley, 866 F.3d 866, 869 (8th Cir. 2017); Mahon v. Ticor Title 

Ins. Co., 683 F.3d 59, 62–63, 65–66 (2d Cir. 2012). Under conventional principles, Fox has not 

done so for any County other than Gratiot County.

How does Fox seek to overcome this problem? He turns to his class-action allegations. 

Under the juridical link doctrine, Fox says, he has standing to sue the 26 other Counties as a 

representative of the class. If 26 landowners with property in each of the 26 other Counties had 

joined Fox’s suit, each landowner would likely have standing to sue his or her respective County 

in the same way that Fox has standing to sue Gratiot County. See Daves, 22 F.4th at 542. So 

whether these 27 plaintiffs could litigate as a group would raise a joinder question under Federal 

Rule of Civil Procedure 20(a), not a standing question under Article III. In the same way, Fox 

argues, whether he may sue the other Counties turns on Rule 23, not Article III.

A circuit split exists over this doctrine. The Seventh Circuit has held that named 

plaintiffs may bring a class action against some defendants who did not injure them if the class 

members would have standing and if the named plaintiff can meet Rule 23’s requirements. 

Payton, 308 F.3d at 678–82. The Second Circuit, by contrast, has held that the named plaintiffs 

must have standing to sue every defendant at the outset, even when they seek to certify a class. 

See Mahon, 683 F.3d at 63–66; see also Wong v. Wells Fargo Bank, 789 F.3d 889, 896 (8th Cir. 

2015).

For our part, we have narrowed the juridical-link concept but left open the possibility that 

it might apply in Fox’s situation. See Thompson v. Bd. of Educ. of Romeo Cmty. Schs., 709 F.2d 

1200, 1205 (6th Cir. 1983). Thompson reserved the question whether plaintiffs could sue many 

state defendants (including those who did not harm them) if the defendants acted within their 

local jurisdictions pursuant to “a state statute or uniform policy” that applied across the state. 

See id. The defendants in Thompson had not followed a uniform policy, so that case did not 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 11

implicate this question. See id.; see also Perry v. Allstate Indem. Co., 953 F.3d 417, 420 n.2 (6th 

Cir. 2020).

Fox’s suit does implicate it. The Counties allegedly took Fox’s (and the class members’) 

land pursuant to the same Act. We thus must wade into this circuit conflict. And we side with 

the Second Circuit in this debate. The juridical link doctrine does not comport with the Supreme 

Court’s standing cases. And Fox does not even attempt to offer any historical analogy for it.

1. Precedent

a. The juridical link doctrine conflicts with Supreme Court precedent in at least three 

ways. First, and most obviously, the Court has held that its usual three-part test for standing 

applies with full force in the class-action context. As the Court has said, a decision to assert 

class allegations in a complaint “adds nothing to the question of standing[.]” Simon, 426 U.S. at 

40 n.20. Like all plaintiffs, class representatives must prove their own “case or controversy with 

the defendants” in order to seek relief for “any other member of the class.” O’Shea v. Littleton, 

414 U.S. 488, 494 (1974); Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019) (per curiam). The 

representatives thus must allege an individual injury; they cannot piggyback off the injuries 

“suffered by other, unidentified members of the class[.]” Warth v. Seldin, 422 U.S. 490, 502 

(1975). And even when they have incurred an injury, they lack standing to seek class-wide relief 

that would go beyond remedying that injury. See Lewis, 518 U.S. at 357–58. That is, they may 

not seek relief against different conduct that has harmed other class members even when it is 

“similar” to the conduct that harmed the representatives. Blum v. Yaretsky, 457 U.S. 991, 999–

1001 & 1001 n.13 (1982).

The juridical link doctrine departs from these rules. Fox himself has not alleged “a case 

or controversy” with the 26 non-Gratiot Counties. O’Shea, 414 U.S. at 494. And even if these 

Counties committed actions “similar” to Gratiot County’s “injurious conduct” against Fox, he 

still lacks standing to challenge their conduct because it did not affect him. Blum, 457 U.S. at 

999. Fox also cannot rely on the claim that the other Counties harmed the “members of the 

class” that he seeks to represent. Id. at 1001 n.13. He must show that they injured him 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 12

“personally” to have standing to sue them. Id. (quoting Warth, 422 U.S. at 502). He cannot do

so.

Second, aside from Fox’s mistaken reliance on the class members’ injuries, his theory 

conflicts with Supreme Court precedent identifying the critical time for standing. Plaintiffs must 

have standing “at the outset of the litigation.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. 

(TOC), Inc., 528 U.S. 167, 180 (2000); see Davis v. FEC, 554 U.S. 724, 734–35 (2008). Why? 

Because a failure of the plaintiff’s standing is a failure of the court’s subject-matter jurisdiction. 

See Steel Co., 523 U.S. at 102–04. And a court’s jurisdiction has long turned on the facts as they 

are when a plaintiff sues, not on later-in-time facts. See Grupo Dataflux v. Atlas Glob. Grp., 541 

U.S. 567, 570–71 (2004); Mollan v. Torrance, 22 U.S. 537, 539 (1824). So a plaintiff who lacks 

standing from the start cannot rely on factual changes during the suit to establish it. See Lujan, 

504 U.S. at 569 n.4. Conversely, if a plaintiff possesses standing from the start, later factual 

changes cannot deprive the plaintiff of standing. See Laidlaw, 528 U.S. at 189–90. Those 

changes instead will create “mootness” issues and trigger that doctrine’s more forgiving rules. 

See id. at 190–92; see also County of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991).

The juridical link doctrine departs from this approach because it changes the time when 

standing matters. Here, Fox undisputedly lacked standing as to the 26 non-Gratiot Counties 

when he sued. At that time, the court had yet to certify a class. The court thus could not rely on 

the class members’ injuries because they were not parties. See Smith v. Bayer Corp., 564 U.S. 

299, 313 (2011). To decide whether a named plaintiff like Fox has standing under the juridical 

link doctrine, then, a court must look to the time of class certification. The doctrine allows a 

class certification decision to create standing against defendants that did not injure the named 

plaintiff. And under the doctrine, a decision that rejects class certification would foreclose that 

standing. Either way, the time of the certification decision (not the time of the suit) becomes the 

critical time to decide whether the plaintiff has standing—in conflict with the normal rule. See 

Laidlaw, 528 U.S. at 180.

Third, Fox’s theory conflicts with more general principles. The Court’s three-part 

standing test represents the “irreducible constitutional minimum” to assert a case or controversy 

in federal court. Lujan, 504 U.S. at 560. It is a key component of the Constitution’s separation 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 13

of powers designed to protect defendants from that portion of the federal government’s coercive 

power vested in the judiciary. See TransUnion, 141 S. Ct. at 2203; Clapper v. Amnesty Int’l 

USA, 568 U.S. 398, 408 (2013). Given the test’s constitutional roots, the Court has required 

“strict compliance” from plaintiffs and has rebuffed all efforts to create exceptions. Raines v. 

Byrd, 521 U.S. 811, 819–20 (1997). For example, the Court has refused to create a standing 

exception even if no party could satisfy its three-part test and the lack of a proper “plaintiff” 

might force the Court to leave an important legal issue unaddressed. Valley Forge Christian 

Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 489–90 (1982). Similarly, 

it has refused to create an “exemption” from its standing test even when plaintiffs claim that they 

need one to prevent a “chilling effect” on important rights. Whole Woman’s Health v. Jackson, 

142 S. Ct. 522, 538 (2021); United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 

1380 (D.C. Cir. 1984) (Scalia, J.). And the Court has refused to water down standing’s strict 

requirements with mootness’s more flexible exceptions. See Laidlaw, 528 U.S. at 190–91.

In conflict with these principles, the juridical link doctrine creates an “efficiency” 

exception to standing. The doctrine grew out of a stray sentence about judicial efficiency in a 

1973 Ninth Circuit case—a time at which the Supreme Court had yet to clearly identify 

standing’s constitutional floor. See La Mar, 489 F.2d at 466; see also Ass’n of Am. Physicians, 

13 F.4th at 538. In La Mar, the named plaintiff sued not just his own pawn broker but also all 

other pawn brokers in Oregon, alleging that they had committed the same statutory violation. 

489 F.2d at 462. The court merely “assume[d] the presence of standing” because it went on to 

hold that Rule 23 prevented the plaintiff from litigating against the other pawn brokers. Id. at 

464–66. Nevertheless, the court opined that a plaintiff might be able to pursue this sort of class 

action if the defendants who did not harm the plaintiff were “juridically related in a manner that 

suggests a single resolution of the dispute would be expeditious.” Id. at 466. The court thus 

justified the juridical link doctrine on the ground that it could streamline litigation. When later 

defending this doctrine, the Seventh Circuit similarly suggested that courts could make more 

“efficient uses of the class action device” if class representatives could sue defendants who did

not harm them. Payton, 308 F.3d at 681. 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 14

But efficiency cannot trump the separation of powers. See INS v. Chadha, 462 U.S. 919, 

959 (1983). Congress could certainly enact laws in a more “efficient” manner if it could 

disregard Article I’s requirement to, say, present bills to the President. Id. at 944. But that fact 

has never justified departures from Article I’s lawmaking process. See id. at 946–59; Clinton v. 

City of New York, 524 U.S. 417, 438–49 (1998). Likewise, even if courts could resolve issues 

with more “convenience and efficiency” by disregarding Article III’s case-or-controversy 

requirement, the Constitution bars them from doing so. Hollingsworth, 570 U.S. at 704–05 

(quoting Raines, 521 U.S. at 820). By making each branch’s exercise of its powers more 

difficult, see Chadha, 462 U.S. at 959, these separation-of-powers rules promote individual and 

political liberty, see Bond v. United States, 564 U.S. 211, 221–24 (2011). Just as Article I’s 

requirements protect the general public from coercive legislation, Article III’s requirements 

protect private and public defendants from coercive judgments. See Clapper, 568 U.S. at 408; cf. 

Clinton, 524 U.S. at 449–52 (Kennedy, J., concurring). By relying on “convenience” to depart 

from the Constitution’s design, the juridical link doctrine dilutes its protections. Hollingsworth, 

570 U.S. at 705 (citation omitted).

b. Fox responds with several precedent-based counterpoints. He initially cites two cases 

stating that class-certification issues are “logically antecedent” to standing concerns. Ortiz v. 

Fibreboard Corp., 527 U.S. 815, 831 (1999) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 

591, 612 (1997)). Fox suggests that this statement permits a court to delay all standing questions 

until it certifies a class. See Payton, 308 F.3d at 680. He overlooks the context of the statement. 

See Mahon, 683 F.3d at 64–65. Unlike Fox’s case, Amchem and Ortiz did not concern standing 

challenges to named plaintiffs; they concerned standing challenges to class members. See Ortiz, 

527 U.S. at 831; Amchem, 521 U.S. at 612–13. It makes sense to consider certification ahead of 

standing for that type of challenge. Because class members are not parties before class 

certification, Smith, 564 U.S. at 313, a court need not worry about their standing until it certifies 

the class, see Amchem, 521 U.S. at 612–13. So a class-certification denial will make a class 

member’s standing problem irrelevant. But the opposite is not true. Named plaintiffs are parties 

from the start. A court thus must immediately concern itself with their standing because 

jurisdictional issues precede the merits. See Steel Co., 523 U.S. at 93–101.
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 15

So Fox switches to the Supreme Court’s mootness cases in this class-action setting. The 

Court has held that a named plaintiff who had standing when the court certified a class may 

continue to seek relief for class members even if later events moot the plaintiff’s individual 

claim. Sosna v. Iowa, 419 U.S. 393, 399 (1975). It reasoned that the class members obtain a 

“legal status” of their own after the court’s class certification, and their claims can keep the

controversy alive. Id.; see United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1538 (2018). Here, 

however, Fox sued the non-Gratiot Counties before the court certified the class. At that stage, 

the class members did not have the separate “status” that could create a live controversy against 

these Counties. Sosna, 419 U.S. at 399.

That may be so, Fox responds, but the Court has also held that a named plaintiff who had 

standing at the outset can—in “limited” circumstances—represent a class even if the plaintiff’s 

claim becomes moot before a class-certification decision. Sanchez-Gomez, 138 S. Ct. at 1539; 

see Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). This narrow mootness exception applies 

when the “inherently transitory” nature of the plaintiff’s claim makes it impossible for the court 

to rule on a certification motion before the claim expires. McLaughlin, 500 U.S. at 51–52 

(citation omitted). Because a plaintiff with a mootness problem may litigate on behalf of a class 

before class certification, Fox argues, a plaintiff with a standing problem should likewise be able 

to litigate on behalf of a class before that certification.

Fox wrongly conflates mootness and standing. See Laidlaw, 528 U.S. at 189. Outside 

the class-action context, the Court has already rejected efforts to incorporate the flexible 

mootness rules into the “strict” standing framework. Raines, 521 U.S. at 819. For example, a 

litigant may continue to pursue a now-moot claim by showing that the claim will arise in the 

future but evade review again. See Laidlaw, 528 U.S. at 190–91. Standing has no similar 

“capable of repetition yet evading review” exception. Id. If a plaintiff’s short-fused claim 

expires before the plaintiff can get into court, no standing exception will save it. See Steel Co., 

523 U.S. at 109; Renne v. Geary, 501 U.S. 312, 320 (1991). The same logic dooms Fox’s 

argument here. The class-action mootness exception for inherently transitory claims resembles 

the individual mootness exception for claims that are capable of repetition yet evading review. 

Both rest on the premise that some claims expire too quickly. See Sanchez-Gomez, 138 S. Ct. at 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 16

1539–40. But if that premise does not allow for a standing exception in individual litigation, it 

should not allow for a standing exception in class litigation. After all, a class-action request 

“adds nothing” to a plaintiff’s standing. Simon, 426 U.S. at 40 n.20. 

Fox thus falls back on Fallick v. Nationwide Mutual Insurance Co., 162 F.3d 410 (6th 

Cir. 1998). There, a plaintiff sued two Nationwide Insurance entities for their conduct in 

administering a health-care plan. Id. at 411. The district court held that the plaintiff lacked 

standing to represent class members who participated in Nationwide’s other health-care plans. 

Id. at 421–22. We disagreed, reasoning that the plaintiff had standing because the defendants 

harmed him and his requested relief would redress the injury. See id. at 421, 423. We added that 

whether he could represent those who participated in other plans turned on Rule 23, not standing. 

See id. at 423–24. Yet we made clear that “individual standing is a prerequisite” to “class 

actions.” Id. at 423. And we noted that a plaintiff must meet standing’s test vis-à-vis “the 

defendant”—foreshadowing the defendant-by-defendant approach that we take here. Id. Fallick

thus confirms our result. 

2. History

Although the Supreme Court’s precedent is best read to reject the juridical link doctrine, 

the Court does not have a decision directly addressing the doctrine. In the cases in which it has 

demanded that a named plaintiff meet standing’s usual test, the plaintiff lacked standing to sue 

all of the defendants, not just some of them. See, e.g., Warth, 422 U.S. at 518. We thus find it 

worthwhile to consider how the Court might approach this question from first principles. 

In recent decades, the Court’s standing caselaw has placed great emphasis on history. 

As a general matter, the Court has read the words “Case” and “Controversy” in Article III to 

refer to those disagreements that were “traditionally amenable to, and resolved by, the judicial 

process” before the founding. Steel Co., 523 U.S. at 102; see Vt. Agency of Nat. Res. v. United 

States ex rel. Stevens, 529 U.S. 765, 774 (2000). As a specific matter, the Court has relied on 

tradition when refining its standing rules. So to evaluate whether an alleged harm meets Article 

III’s “concrete injury” element, the Court asks whether parties have traditionally sued over that 

type of injury. See TransUnion, 141 S. Ct. at 2204. 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 17

The Court has also regularly relied on history to decide whether one party who would 

otherwise lack standing may sue as a “representative” of another party who has standing. Ass’n 

of Am. Physicians, 13 F.4th at 538; see Hollingsworth, 570 U.S. at 711. Suppose, for example, 

that a party suffers from an impediment that undermines the party’s ability to sue (say, because 

the party is a child, struggles with mental-health problems, or sits behind prison walls). The 

Court has held that a “next friend” has standing to sue on this party’s behalf because that type of 

representative litigation predates the founding. Whitmore v. Arkansas, 495 U.S. 149, 161–66 

(1990). Likewise, the Court has held that private “relators” have standing to bring qui tam suits 

on the government’s behalf because of a similarly lengthy historical record. See Stevens, 529 

U.S. at 773–78; see also Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 274–85 

(2008). 

These decisions offer insights here because class actions are, at bottom, “a form of 

representative litigation.” 1 William B. Rubenstein, Newberg and Rubenstein on Class Actions

§ 1:1, at 2 (6th ed. 2022); see Ortiz, 527 U.S. at 832–33. The named plaintiffs litigate not just 

their own claims but also the claims of class members who become bound by the judgment. See 

Taylor v. Sturgell, 553 U.S. 880, 894–95 (2008). Like the qui tam relator in Stevens, then, 

perhaps one could attempt to justify the juridical link doctrine by showing a “long tradition” of 

named plaintiffs in class-like litigation suing not just the defendant who harmed them but also 

other defendants who inflicted similar harms on others. 529 U.S. at 774.

Yet Fox has not done so. Indeed, he has not even tried to do so. Although the Supreme 

Court has clarified the importance of tradition in the standing inquiry, see TransUnion, 141 

S. Ct. at 2204, he offers no historical support for the juridical link doctrine. Nor have we found 

any “long tradition” of courts resolving suits like Fox’s. Stevens, 529 U.S. at 774. 

That is not for a lack of source material. The modern class action has a lengthy pedigree 

in English equity. See Ortiz, 527 U.S. at 832; Geoffrey C. Hazard, Jr. et al., An Historical 

Analysis of the Binding Effect of Class Suits, 146 U. Pa. L. Rev. 1849, 1858–78 (1998). Equity 

courts traditionally required a plaintiff to add all necessary parties to a suit. See Joseph Story, 

Commentaries on Equity Pleadings § 72, at 74 (1838); Hazard et al., supra, at 1859. But they 

developed an exception if the necessary parties were so “numerous” as to make joinder 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 18

impracticable. Story, supra, at §§ 94–97, at 93–98. In that circumstance, the English Court of 

Chancery used the “bill of peace” to allow a named plaintiff or defendant to represent a broader 

group. See 7A Charles A. Wright et al., Federal Practice and Procedure § 1751, at 9–10 (4th 

ed. 2021); 1 John Norton Pomeroy, Treatise on Equity Jurisprudence § 246, at 257 (1881). 

This type of suit arose in a variety of circumstances. The named tenants of a manor 

might represent all of the tenants in a dispute against the manor’s lord over hunting rights on 

manorial lands. How v. Tenants of Bromsgrove, 23 Eng. Rep. 277, 277 (Ch. 1681); see Stephen 

C. Yeazell, Group Litigation and Social Context: Toward a History of the Class Action, 77 

Colum. L. Rev. 866, 868–69 (1977). Or the named parishioners of a parish might represent all of 

the parishioners in a dispute against the vicar over the proper tithes. Brown v. Vermuden, 22 

Eng. Rep. 802, 802 (Ch. 1676); see Yeazell, supra, at 869–70. Similarly, the named partners in a 

partnership might represent all of the partners in a dispute against managers who embezzled 

funds. Chancey v. May, 24 Eng. Rep. 265, 265 (Ch. 1722); see Hazard et al., supra, at 1874. Or 

the named creditors of a debtor might represent all of the creditors in a dispute over the debts. 

See Leigh v. Thomas, 28 Eng. Rep. 201, 201 (Ch. 1751); Hazard et al., supra, at 1866–74. 

Early American authorities viewed these “bills of peace” as consistent with a cognizable 

“case.” See Hazard et al., supra, at 1878–85. Joseph Story, for example, relied on the English 

precedent to suggest that heirs could sue an estate’s executors on “behalf of themselves and all 

other” heirs before he found the specific bill inadequate on other grounds. West v. Randall, 29 

F. Cas. 718, 723 (C.C.D.R.I. 1820) (citing Brown v. Ricketts, 3 Johns. Ch. 553, 555 (N.Y. Ch. 

1818)). And, in perhaps its first case on this topic, the Supreme Court allowed preachers to sue 

on behalf of themselves and similarly situated clergy to obtain a share of a fund held by their 

former church. See Smith v. Swormstedt, 57 U.S. 288, 298–303 (1853). Although “great 

controversy” later arose over whether a “multiplicity” of parties alone was “a sufficient reason 

for getting into [the] equity” courts, nobody appears to have doubted that bills of peace created 

justiciable cases. Zechariah Chafee, Jr., Bills of Peace with Multiple Parties, 45 Harv. L. Rev. 

1297, 1312 (1932); compare Pomeroy, supra, § 269, at 293, with Tribbette v. Illinois Cent. R.R., 

12 So. 32, 32–34 (Miss. 1892).
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 19

Still, this history does not support Fox’s broader standing theory. As should be evident 

from our description of bills of peace, a live dispute existed between the named plaintiffs (say, 

tenants or creditors) and the defendant or defendants they sued (say, a lord or debtor). Or, as 

Professor Chafee summarized things, bills of peace involved “several persons (conveniently 

called the multitude) on one side of a controversy, and one person (whom we may call the 

adversary) on the other side.” Chafee, supra, at 1297; see Pomeroy, supra, § 245, at 256–57. 

Despite Fox’s effort to sue 26 other Counties, he identifies no bills of peace in which, say, named 

tenants sued not just the lord of their own manor on behalf of their cotenants but also the lords of 

all other manors on behalf of unrelated tenants. The bills instead are analogous to a suit against 

only Gratiot County on behalf of Fox and other landowners that this County harmed. Cf. 

Pomeroy, supra, § 260, at 276–80; Hazard et al., supra, at 1893–97. Fox has not identified any 

historical analog that shows that his broader class action was “traditionally amenable to” judicial 

resolution. Steel Co., 523 U.S. at 102. And our reading of the history does not support the 

juridical link doctrine. 

All told, Fox’s suit conflicts with the Supreme Court’s standing cases in the class-action 

context. And he offers no historical support for it. He thus may not pursue this class action.

III. Rule 23’s Requirements

Fox’s lack of standing to sue most Counties requires us to vacate the certified class. 

So we need not address the Counties’ alternative argument that the district court improperly 

analyzed Rule 23’s requirements. On remand, however, Fox might attempt to pursue a class 

action by joining named plaintiffs for the 26 other Counties. We will leave whether he may do 

so to the district court. At the least, he may attempt to certify a smaller class of Gratiot County 

landowners. Either choice could resurrect Rule 23 questions. Because we have our doubts about 

the district court’s prior order, we offer a few observations to help guide any renewed 

certification proceedings. 

A court may not certify a class unless it engages in a “rigorous analysis” showing that the 

named plaintiff meets all of Rule 23’s requirements. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 

338, 350–51 (2011) (quoting Gen. Tele. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)). The 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 20

plaintiff must prove, among other things, that “questions of law or fact common to class 

members predominate over any questions affecting only individual members[.]” Fed. R. Civ. P. 

23(b)(3); Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). This text requires a court to add up 

all the suit’s common issues (those that the court can resolve in a yes-or-no fashion for the class) 

and all of its individual issues (those that the court must resolve on an individual-by-individual 

basis). See Martin v. Behr Dayton Thermal Prods. LLC, 896 F.3d 405, 413 (6th Cir. 2018). The 

court must then qualitatively evaluate which side “predominates” over the other. See id.; see 

also Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453–54 (2016). 

The district court here found this predominance element met because the question 

whether the Counties “unlawfully retained surplus proceeds is a specific legal question that is 

subject to generalized proof by all members of the putative class.” Fox, 2020 WL 6118487, at 

*10. This reasoning falls short of the “rigorous analysis” that the Supreme Court requires. WalMart, 569 U.S. at 351 (citation omitted). The fact that a common issue exists does not prove that 

it predominates. It proves only that “there are questions of law or fact common to the class”—

Rule 23(a)’s threshold requirement. Fed. R. Civ. P. 23(a)(2). And while a common issue may 

well exist here, the court’s high-level identification of it (did the Counties behave unlawfully?) 

may not even satisfy Rule 23(a). Although Fox has raised a variety of claims, the court did not 

describe any of their elements, let alone explain which could be proved across the board for the 

entire class. See Doster v. Kendall, 54 F.4th 398, 430–32 (6th Cir. 2022). In any event, the 

predominance requirement demands more than the commonality requirement. See Comcast, 569 

U.S. at 34.

In that respect, several individual issues may pose obstacles to showing that common 

issues predominate. For instance, how will each landowner prove that owner’s damages? If a 

court may identify the amount of damages using a “formulaic calculation” for each class 

member, common issues may well predominate. 2 Rubenstein, supra, § 4:54, at 284; 

Zehentbauer Fam. Land, LP v. Chesapeake Expl., L.L.C., 935 F.3d 496, 506, 510 (6th Cir. 

2019). But if fact-specific damage trials “will inevitably overwhelm” common liability 

questions, individual issues may predominate. Comcast, 569 U.S. at 34. We made this precise 

point when upholding the denial of class certification for an Ohio class of landowners who 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 21

alleged similar claims to Fox’s. See Tarrify Props, LLC v. Cuyahoga County, 37 F.4th 1101, 

1106–08 (6th Cir. 2022).

In any further certification proceedings, therefore, the district court must consider how 

Fox will prove damages. If landowners seek only the surplus proceeds from a treasurer’s 

foreclosure sale (Rafaeli’s remedy), perhaps these mechanical calculations could allow the 

maintenance of the class action. See 952 N.W.2d at 465–66; 2 Rubenstein, supra, § 4:50, at 258. 

Yet, after the district court certified the class, we clarified that landowners may instead seek the 

difference between the fair market value of their homes and the taxes they owe—whether or not 

the treasurer obtained surplus proceeds at a foreclosure sale. See Hall, 51 F.4th at 195. While 

potentially more lucrative for class members, this damages method necessitates fact-specific 

evidence about the worth of each class member’s property on a property-by-property basis. It 

thus could “overwhelm” any common liability issues. Comcast, 569 U.S. at 34; see Tarrify, 37 

F.4th at 1106. 

Apart from damages, the district court should consider to what extent the Counties have 

unique defenses against class members. 2 Rubenstein, supra, § 4:55, at 296–98; see Sandusky 

Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc., 863 F.3d 460, 468–69 (6th Cir. 2017); see 

also, e.g., Gorss Motels, Inc. v. Brigadoon Fitness, Inc., 29 F.4th 839, 845 (7th Cir. 2022). 

When we decided Hall, for instance, we affirmed the dismissal of several landowners’ claims on 

grounds of res judicata and standing. See Hall v. Meisner, 2022 WL 7478163, at *1–2 (6th Cir. 

Oct. 13, 2022). Because the district court certified the class without taking discovery, we have 

no idea how many class members might face these or similar defenses. 

After the court’s certification order, moreover, the Michigan legislature adopted a process 

for landowners to obtain the surplus proceeds from a foreclosure sale. Mich. Comp. Laws 

§ 211.78t(1)–(6). Yet the procedures differ depending on when a treasurer took the property. 

See id. § 211.78t(1)(a)–(b). This law might also supply different defenses against different class 

members. Cf. id. § 211.78t(11). The court should likewise consider it in the predominance 

inquiry. 
Nos. 22-1265/1272 Fox v. Saginaw County, Mich., et al. Page 22

Lastly, many landowners might have liens on their property from sources other than the 

government, such as the bank from which they took out a mortgage. If a landowner with 

$30,000 in surplus proceeds has a $20,000 mortgage, should the landowner get the full amount? 

Or only $10,000? Because lienholders are not class members, should an entity like the bank be 

able to sue separately? Or would that permit double recovery? The district court suggested in 

conclusory fashion that this lienholder problem did not suffice to bar class certification. See Fox, 

2020 WL 6118487, at *8, *10. But it did not explain how it planned to handle the problem. 

At day’s end, we do not seek to prejudge the propriety of any future class. To certify a 

class action, however, a district court must forecast how the parties will conduct the litigation 

from the certification stage through the trial to the final judgment. See Sandusky, 863 F.3d at 

468. As of now, we have little understanding of how this suit would progress as a class action.

* * *

We vacate the district court’s order certifying this class action and remand for 

proceedings consistent with this opinion.