FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE: WILLIAMS-SONOMA, INC.;

WILLIAMS-SONOMA ADVERTISING,

INC.; WILLIAMS-SONOMA DTC, INC.,

______________________

WILLIAMS-SONOMA, INC., a

Delaware corporation, DBA Pottery

Barn, DBA Williams-Sonoma, DBA

Williams-Sonoma Home;

WILLIAMS-SONOMA ADVERTISING,

INC., a California corporation;

WILLIAMS-SONOMA DTC, INC., a

California corporation,

Petitioners,

v.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

CALIFORNIA, SAN FRANCISCO,

Respondent,

WILLIAM RUSHING, Individually

and on Behalf of all Others Similarly

Situated,

Real Party in Interest.

No. 19-70522

D.C. No.

3:16-cv-01421-

WHO

OPINION
2 IN RE: WILLIAMS-SONOMA, INC.

Appeal from the United States District Court

for the Northern District of California

William Horsley Orrick, District Judge, Presiding

Argued and Submitted October 2, 2019

San Francisco, California

Filed January 13, 2020

Before: Ferdinand F. Fernandez and Richard A. Paez,

Circuit Judges, and Jennifer Choe-Groves,*

 Judge.

Opinion by Judge Fernandez;

Dissent by Judge Paez

SUMMARY**

Writ of Mandamus / Discovery

The panel granted Williams-Sonoma Advertising, Inc.’s

petition for a writ of mandamus, and ordered the district court

to vacate a pre-class-certification discovery order that

directed Williams-Sonoma to produce a list of California

customers who had purchased certain bedding products. 

* The Honorable Jennifer Choe-Groves, Judge for the United States

Court of International Trade, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
IN RE: WILLIAMS-SONOMA, INC. 3

William Rushing brought an underlying action

against Williams-Sonoma to recover damages that he

allegedly suffered due to Williams-Sonoma’s alleged

misrepresentations about thread count on bedding he

purchased. Before a class action was certified, the district

court determined that Kentucky law governed Rushing’s

claim and that Kentucky consumer law prohibited class

actions. The district court granted Rushing’s request to

obtain discovery from Williams-Sonoma for the purpose of

aiding his counsel’s attempt to find a California customer

who purchased similar bedding.

In determining whether to issue mandamus relief, the

panel applied the Bauman v. U.S. Dist. Court, 557 F.2d 650,

656-661 (9th Cir. 1977), factors. The panel held that

Supreme Court authority demonstrated clear error in the

district court’s decision. The panel held that the Supreme

Court has determined that seeking discovery of the name of

a class member (here an unknown person, who could sue

Williams-Sonoma) was not relevant within the meaning of

Fed. R. Civ. P. 26(b)(1), which limits the scope of discovery. 

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353

(1978). The panel concluded that the district court clearly

erred as a matter of law when it ordered the discovery in

question, and the balance of factors weighed in favor of

granting the writ of mandamus.

Judge Paez dissented because in his view the district court

had not erred, let alone committed the clear error required for

the extraordinary remedy of mandamus relief.
4 IN RE: WILLIAMS-SONOMA, INC.

COUNSEL

P. Craig Cardon (argued), Robert J. Guite, and Benjamin O.

Aigboboh, Sheppard Mullin Richter & Hampton LLP, San

Francisco, California, for Petitioners.

Kathryn Honecker (argued) and Jonathan Udell, Rose Law

Group, PC, Scottsdale, Arizona; Amber L. Eck and Robert D.

Prine, Haeggquist & Eck, LLP, San Diego, California;

George Richard Baker, Baker Law, PC, Los Angeles,

California; for Real Party in Interest.

No appearance for Respondent.

Timothy G. Blood and Paula R. Brown, Blood Hurst &

O’Reardon, LLP, San Diego, California, for Amicus Curiae

Consumer Attorneys of California.

OPINION

FERNANDEZ, Circuit Judge:

Williams-Sonoma,Inc.,Williams-Sonoma DTC, Inc., and

Williams-Sonoma Advertising, Inc. (collectively “WilliamsSonoma”) petition for a writ of mandamus1

ordering the

district court to vacate a pre-class-certification discovery

order that directed Williams-Sonoma to produce a list of

California customers who had purchased certain bedding

products. The purpose of the discovery was to enable

opposing counsel to find a lead plaintiff to pursue a class

1

 28 U.S.C. § 1651(a).
IN RE: WILLIAMS-SONOMA, INC. 5

action against Williams-Sonoma under California law. We

grant the petition.

BACKGROUND

William Rushing, a resident and citizen of the State of

Kentucky, allegedly purchased bedding from WilliamsSonoma, and an important reason for his doing so was based

upon the advertised thread count. Williams-Sonoma said that

the thread count was 600 threads per square inch, but Rushing

allegedly later discovered that it was actually much lower

than that. Thus, he brought an action against WilliamsSonoma to recover damages under the law of the State of

California that he allegedly suffered due to WilliamsSonoma’s alleged misrepresentations. He also sought

damages under California law for a class of consumers who

bought bedding from Williams-Sonoma due to the selfsame

alleged misrepresentations. 

Before a class action was certified,2the district court

determined, inter alia, that Kentuckylaw governed Rushing’s

claims and that Kentucky consumer law prohibited class

actions. Rushing gave notice that he would pursue his

personal claims under Kentucky law, but sought to obtain

discovery3from Williams-Sonoma for the sole purpose of

aiding his counsel’s attempt to find a California purchaser of

bedding from Williams-Sonoma who might be willing to sue. 

The district court obliged, and to that end ordered WilliamsSonoma to produce a list of all California customers who

purchased bedding products of the type referred to in

2

See Fed. R. Civ. P. 23(c)(1)(A).

3

See Fed. R. Civ. P. 26, 33.
6 IN RE: WILLIAMS-SONOMA, INC.

Rushing’s complaint since January 29, 2012. WilliamsSonoma’s request for leave to file a motion for

reconsideration was denied; this petition followed.

DISCUSSION

Williams-Sonoma seeks a writ of mandamus to avoid the

strictures of the district court’s discovery order. In deciding

whether to issue a writ of mandamus we apply the Bauman

factors, which we have described as follows:

(1) The party seeking the writ has no other

adequate means, such as a direct appeal, to

attain the relief he or she desires.

(2) The petitioner will be damaged or

prejudiced in a way not correctable on appeal

. . . .

(3) The district court’s order is clearly

erroneous as a matter of law.

(4) The district court’s order is an oft-repeated

error, or manifests a persistent disregard of

the federal rules.

(5) The district court’s order raises new and

important problems, or issues of law of first

impression.

SG Cowen Sec. Corp. v. U.S. Dist. Court, 189 F.3d 909, 913

(9th Cir. 1999) (alteration in original) (citation omitted);

Bauman v. U.S. Dist. Court, 557 F.2d 650, 656–661 (9th Cir.

1977). Not all of those factors need to be satisfied, and all
IN RE: WILLIAMS-SONOMA, INC. 7

must be “weighed together” on a case-by-case basis. See SG

Cowen, 189 F.3d at 913–14; Admiral Ins. Co. v. U.S. Dist.

Court, 881 F.2d 1486, 1491 (9th Cir. 1989). In considering

the factors, we keep in mind the drastic and extraordinary

nature of that remedy, and the fact that Williams-Sonoma has

the weighty burden of convincing us to prescribe it. See Van

Dusen v. U.S. Dist. Court (In re Van Dusen), 654 F.3d 838,

840–41 (9th Cir. 2011); see also United States v. Guerrero,

693 F.3d 990, 999–1000 (9th Cir. 2012); SG Cowen, 189 F.3d

at 913. 

In any event, “[b]ecause we have held that ‘the absence of

factor three—clear error as a matter of law—will always

defeat a petition for mandamus,’”4 we will address that factor

first. We are mindful that we do not generally find clear error

when there is no prior Ninth Circuit authority prohibiting the

district court’s action. See Morgan v. U.S. Dist. Court (In re

Morgan), 506 F.3d 705, 713 (9th Cir. 2007); cf. Barnes v. Sea

Haw. Rafting, LLC, 889 F.3d 517, 537 (9th Cir. 2018)

(holding that when an “‘important issue of first impression’”

is raised, the standard is ordinary error). 

In the present case, contrary Supreme Court authority

demonstrates the clear error in the district court’s decision. 

Rule 26(b)(1) limits the scope of discovery to “nonprivileged

matter that is relevant to any party’s claim or defense.” And

the Supreme Court has determined that seeking discovery of

the name of a class member (here an unknown person, who

could sue Williams-Sonoma) is not relevant within the

meaning of that rule. As the Court held:

4

Sussex v. U.S. Dist. Court (In re Sussex), 781 F.3d 1065, 1071 (9th

Cir. 2015).
8 IN RE: WILLIAMS-SONOMA, INC.

The general scope of discovery is defined

by Fed. Rule Civ. Proc. 26(b)(1) as follows:

“Parties may obtain discovery

regarding any matter, not privileged,

which is relevant to the subject matter

involved in the pending action,

whether it relates to the claim or

defense of the party seeking discovery

or the claim or defense of any other

party . . . .”

The keyphrase in this definition—“relevant to

the subject matter involved in the pending

action”—has been construed broadly to

encompass any matter that bears on, or that

reasonably could lead to other matter that

could bear on, any issue that is or may be in

the case. . . . 

At the same time, “discovery, like all

matters of procedure, has ultimate and

necessary boundaries.” . . . Discovery of

matter not “reasonably calculated to lead to

the discovery of admissible evidence” is not

within the scope of Rule 26(b)(1). . . .

Respondents’ attempt to obtain the class

members’ names and addresses cannot be

forced into the concept of “relevancy”

described above. The difficulty is that

respondents do not seek this information for

any bearing that it might have on issues in the

case. . . . If respondents had sought the
IN RE: WILLIAMS-SONOMA, INC. 9

information because of its relevance to the

issues, they would not have been willing, as

they were, to abandon their request if the

District Court would accept their proposed

redefinition of the class and method of

sending notice. Respondents argued to the

District Court that they desired this

information to enable them to send the class

notice, and not for any other purpose. Taking

them at their word, it would appear that

respondents’ request is not within the scope of

Rule 26(b)(1).

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350–53,

98 S. Ct. 2380, 2389–90, 57 L. Ed. 2d 253 (1978) (footnotes

omitted). The Court then concluded: “[W]e do not think that

the discovery rules are the right tool for this job.” Id. at 354,

98 S. Ct. at 2391 (footnote omitted); see also Reed v. Bowen,

849 F.2d 1307, 1313–14 (10th Cir. 1988) (power of the court

should not be used to solicit clients); Douglas v. Talk Am.,

Inc., 266 F.R.D. 464, 467–68 (C.D. Cal. 2010) (same). There

are two distinctions between the case at hand and

Oppenheimer, but both cut against the district court’s

decision here.

One of those distinctions is that Rule 26(b)(1) was

amended to its current form after 1978 when Oppenheimer

was decided. As quoted above, the rule then indicated that

discovery must be “relevant to the subject matter involved in

the pending action” that related to a party’s claim or defense. 

Now, the “subject matter” reference has been eliminated from

the rule, and the matter sought must be “relevant to any

party’s claim or defense.” Rule 26(b)(1). That change,

however, was intended to restrict, not broaden, the scope of
10 IN RE: WILLIAMS-SONOMA, INC.

discovery. See Rule 26(b)(1) advisory committee’s note to

2000 amendment; see also id. advisory committee’s note to

2015 amendment; cf. Elvig v. Calvin Presbyterian Church,

375 F.3d 951, 967–68 (9th Cir. 2004).

The other distinction is that Oppenheimer dealt with a

case where class certification had already been granted, and

the moving party sought to obtain a list of members of that

class. This case is a step removed from that—here counsel is

without a lead plaintiff for the class issues that counsel

wishes to pursue, so no class has been certified. It follows

that the request here is less relevant than the request in

Oppenheimer. The district court clearly erred as a matter of

law when it ordered the discovery in question.

Rushing contends that the information sought in

discovery was relevant to class certification issues, such as

commonality, typicality, ascertainability, and reliance. That

does not undercut, or water down, the primary point that

using discovery to find a client to be the named plaintiff

before a class action is certified is not within the scope of

Rule 26(b)(1). Oppenheimer, 437 U.S. at 353, 98 S. Ct. at

2390. In short, the district court clearly erred when it decided

otherwise.5

5 By the way, the district court also erred to the extent that it applied

California discovery rules. It was required to apply the Federal Rules of

Civil Procedure regarding discovery, which, of course, included the

restrictions upon granting discovery under those rules. See Fed. R. Civ.

P. 26(b)(1) (hereafter, Rule 26(b)(1)); id. at 81(c)(1); Gasperini v. Ctr. for

Humanities, Inc., 518 U.S. 415, 427 & n.7, 116 S. Ct. 2211, 2219 & n.7,

135 L. Ed. 2d 659 (1996); Bearint ex rel. Bearint v. Dorell Juvenile Grp.,

Inc., 389 F.3d 1339, 1352–53 (11th Cir. 2004); Vess v. Ciba-Geigy Corp.

USA, 317 F.3d 1097, 1103 (9th Cir. 2003); Metabolife Int’l, Inc. v.

Wornick, 264 F.3d 832, 845–46 (9th Cir. 2001).
IN RE: WILLIAMS-SONOMA, INC. 11

As to the first Bauman factor, Williams-Sonoma has no

other adequate means for relief available to it at this time,6

and before a direct appeal could be taken and heard, the

disclosure and damage to its (and its customers’) interests

would be complete—its claim would be mooted.7 Thus, the

first and second factors weigh in favor of granting the

petition. 

We are unable to say that the district court’s error was one

that is oft-repeated, or that it is a novel issue.8 Thus, “the

fourth and fifth Bauman factors do not weigh in favor of

granting the petition.” Tillman, 756 F.3d at 1153.

The balance of the factors weighs in favor of granting the

writ of mandamus. See id.; Hernandez v. Tanninen, 604 F.3d

1095, 1101–02 (9th Cir. 2010); cf. San Jose Mercury News,

Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1099–1100, 1103 (9th

Cir. 1999).

Therefore, we grant the petition for a writ of mandamus

and vacate the district court’s discovery order.

Petition GRANTED.

6

See SG Cowen, 189 F.3d at 913; Admiral Ins. Co. v. U.S. Dist.

Court, 881 F.2d 1486, 1491 (9th Cir. 1989).

7

See SG Cowen, 189 F.3d at 914.

8 Because the Court has so clearly spoken, we cannot call the issue

one of first impression. If it were one, it would weigh in favor of granting

the petition. See United States v. Tillman, 756 F.3d 1144, 1150, 1153 (9th

Cir. 2014).
12 IN RE: WILLIAMS-SONOMA, INC.

PAEZ, Circuit Judge, dissenting:

Mandamus is an extraordinaryremedy—among “the most

potent weapons in the judicial arsenal”—and one we must not

resort to absent clear error. Cheney v. U.S. Dist. Court for

D.C., 542 U.S. 367, 380 (2004) (quoting Will v. United

States, 389 U.S. 90, 107 (1967)); see also Bauman v. U.S.

Dist. Court, 557 F.2d 650, 658–60 (9th Cir. 1977). In my

view, the district court has not erred, let alone committed

“clear and indisputable” error. Cheney, 542 U.S. at 381

(quotation marks omitted). I therefore respectfully dissent. 

The majority relies on the Supreme Court’s decision in

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), to

hold that the district court’s discovery order is legally

incorrect. As I read Oppenheimer, however, it stands for a

much narrower proposition. The Court held only that once a

district court certifies a class action, class counsel must rely

on the class action procedures outlined in Federal Rule of

Civil Procedure 23—and not the federal discovery rules

contained in Rules 26 through 37—to notify absent class

members of certification. Oppenheimer did not hold that

plaintiffs cannot seek the identities and contact information

of absent class members for a different purpose before the

class is certified, as here. 

But even if the federal discovery rules do not authorize

the district court’s order, that still leaves Rule 23, which

broadly empowers the district court to take measures

necessary to maintain a class action, protect the interests of

putative class members, and provide notice to absent class

members when necessary to protect their interests. 

Oppenheimer certainly did not narrow the scope of Rule 23

and, indeed, relied on it. 
IN RE: WILLIAMS-SONOMA, INC. 13

The majority points to no clear legal error or abuse of

discretion by the district court. And even if the court’s order

were questionable, our intervention is unnecessary. 

Mandamus, under these circumstances, is not warranted. 

I.

I begin with Oppenheimer. There, the plaintiffs sought to

pursue a class action against an investment fund. 437 U.S. at

342–44. The district court certified the class under Rule

23(b)(3), which triggered mandatory notice to absent class

members under Rule 23(c)(2). See id. at 346; Fed. R. Civ. P.

23(c)(2)(B). The thrust of the dispute was which party must

pay the costs of identifying and notifying the unnamed class

members. Oppenheimer, 437 U.S. at 349–64. The district

court ordered the defendants to do so. Id. at 346. 

The Second Circuit reversed. It reasoned that the

Supreme Court’s decision in Eisen v. Carlisle & Jacquelin

(Eisen IV), 417 U.S. 156 (1974), required the plaintiffs, and

not defendants, to pay because “the identification of class

members is an integral step in the process of notifying them.” 

Oppenheimer, 437 U.S. at 347. On rehearing en banc,

however, the Second Circuit affirmed the district court’s

order, holding that Eisen IV did not necessarily govern the

issue because the plaintiffs could rely on alternative

procedural rules to obtain the same information: the federal

discovery rules. Id. (citing Sanders v. Levy, 558 F.2d 636,

649–50 (2d Cir. 1976) (en banc)). The en banc court

concluded that the district court had not abused its discretion

in allocating the costs of notice to the defendants. Id. (citing

Sanders, 558 F.2d at 646). 
14 IN RE: WILLIAMS-SONOMA, INC.

The Supreme Court disagreed. The Court began by

emphasizing that Rule 26 only allows a party to seek

materials “relevant” to the subject matter of any claim or

defense. Id. at 350–51. The Court reasoned that the

plaintiffs’ procedural obligation to comply with the Rule

23(c)(2) notice obligations did not, by itself, relate to the

subject matter of a claim or defense under Rule 26. Id. at

352–54. The “critical” issue, according to the Court, was that

plaintiffs “sought [the information] to facilitate the sending

of notice rather than to define or clarify issues in the case.” 

Id. at 350. The “proper[]” channel to accomplish this

purpose, the Court held, was Rule 23(d)—the “natural place

to look for authority for orders regulating the sending of

notice.” Id. at 350, 354. The Court reasoned that this rule

“vests power in the district court to order one of the parties to

perform the tasks necessary to send notice.” Id. at 354. In

reversing, the Court expressly left open the possibility that

Rule 26 could be used to obtain the same information when

it is relevant to other issues in the case. Id. at 354 n.20 (“We

do not hold that class members’ names and addresses never

can be obtained under the discovery rules.”); id. at 353 n.18

(“The difference between the cases relied on by [plaintiffs]

and this case is that [plaintiffs] do not seek information

because it may bear on some issue which the District Court

must decide, but only for the purpose of sending notice.”); see

also id. at 351 & n.13 (noting that discovery is not “limited to

the merits of a case” such as, for example, when “issues arise

as to jurisdiction or venue”). 

The present case is markedlydifferent than Oppenheimer. 

Unlike in Oppenheimer, Plaintiff’s action has not yet been

certified under Rule 23(c), and Plaintiff does not necessarily

seek to provide notice. Plaintiff’s counsel instead seeks to

substitute the named class representative with one who has
IN RE: WILLIAMS-SONOMA, INC. 15

standing under California law. Whether the federal discovery

rules may be used for this purpose is an open question. 

Indeed, the majority does not point to any case that has

clearly addressed it. To answer this question, the majority

asks whether the absent class member names and contact

information is “relevant”1to a “party’s” claim or defense. 

Fed. R. Civ. P. 26(b)(1). While the majority reads

Oppenheimerto hold that it is not, I do not read Oppenheimer

so strictly. In any event, we need not resolve that question at

this stage: the sole issue before us is whether the district

court’s discovery order is so clearly wrong that our

intervention is necessary. Because neither Oppenheimer nor

our court’s precedent dictates otherwise, I do not believe that

it is.

II.

Even if Oppenheimer foreclosed use of the federal

discovery rules to aid the identification of class member

names and contact information, its reasoning suggests another

basis for the district court’s order: Rule 23. See

Oppenheimer, 437 U.S. at 354. Rule 23(d) provides district

courts with “substantial residual powers” to regulate

communications with absent class members outside of formal

notice requirements. William B. Rubenstein, 3 Newberg on

Class Actions § 9:2 (5th ed.) (citing, among others, Rule

1 Contrary to the majority’s suggestion, relevance continues to have

a broad meaning, even after the 2000 Amendments to the procedural rules. 

See Alan Wright & Arthur R. Miller, 8 Fed. Prac. & Proc. Civ. § 2008 (3d

ed.) (“Most courts which have addressed the issue find that the [2000]

amendments to Rule 26 still contemplate liberal discovery, and that

relevancy under Rule 26 is extremely broad.”) (quotation marks omitted).
16 IN RE: WILLIAMS-SONOMA, INC.

23(d)(1)(A)).2 That is because class actions are a form of

representative litigation, and, before certification, counsel

“may wish to advise potential plaintiffs of their rights and

encourage their involvement in a class suit, to seek helpful

evidence from them, or simply to inform them of the status of

the litigation.” Id. § 9:6. The ability to communicate with

members of the class is acutely important given the fiduciary

duties that class counsel owes unnamed class members. 

6 Newberg on Class Actions § 19:2 (5th ed.); see also Koby

v. ARS Nat’l Servs., Inc., 846 F.3d 1071, 1079 (9th Cir. 2017)

(acknowledging fiduciary obligations owed to absent class

members before certification); In re Gen. Motors Corp. PickUp Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768, 801

(3d Cir. 1995). And “[s]ince identification simply is another

task that must be performed in order to” communicate to

potential plaintiffs their rights and encourage their

involvement in a class suit, it was reasonable for the district

court “to require [Williams-Sonoma’s] cooperation” to cull

that list. See Oppenheimer, 437 U.S. at 355.

Likewise, Rule 23(d)(1)(B)(i) authorizes district courts to

order that class members be notified of “any step in the

action” to “protect class members.”3 The district court’s

ruling that the sole named plaintiff no longer had standing

under California law is, certainly, a “step in the action.” And

it is a step that, without some protective measure, would harm

2Rule 23(d)(1)(A), for example, authorizes a court to issue orders that

“determine the course of the proceedings or prescribe measures to prevent

undue repetition or complication in presenting evidence or argument.” 

Fed. R. Civ. P. 23(d)(1)(A).

3 The advisory committee describes the reasons to provide notice

under Rule 23(d) as “non-exhaustive.” See Fed. R. Civ. P. 23(d)(2)

advisory committee’s note to the 1966 amendment. 
IN RE: WILLIAMS-SONOMA, INC. 17

class members’ interests in at least one significant way. For

example, when a class action is filed, putative class members

enjoy a tolling of the statute of limitations until certification

is denied or the case is resolved. See Am. Pipe & Constr. Co.

v. Utah, 414 U.S. 538, 553–54 (1974). In an action that has

been pending for almost three years, the putative class

members’ interests in keeping the suit alive would well be

jeopardized, absent notice.4

The district court thus acted well within its authority by

facilitating class counsel’s attempts to communicate with

absent class members and to notify them of important

developments in the lawsuit. Because the district court’s

order was a “matter . . . committed to discretion, it cannot be

said that [Williams-Sonoma’s] right to a particular result is

clear and indisputable.” See Allied Chem. Corp. v. Daiflon,

Inc., 449 U.S. 33, 36 (1980) (per curiam) (quotation marks

omitted). I would thus deny the petition for a writ of

mandamus. I respectfully dissent.

4 That notice is provided to allow absent class members to intervene

or otherwise keep the suit alive is hardly controversial. See Rule

23(d)(1)(B)(iii); Wright & Miller, 7B Fed. Prac. & Proc. Civ. § 1793

(3d ed.) (“Indeed, it has been held that [Rule 23(d)(1)(B)] may be invoked

to send notice to putative class members to intervene when the original

plaintiff representative moves to strike the class allegations and settle his

individual claim or when the class certification is denied.”); see also

1 Newberg on Class Actions § 2:17 (“Once a class complaint is filed, but

certainly following certification, Rule 23 is designed to assure that the

rights of absent class members are not prejudiced by the voluntary actions

of the representative plaintiff. Accordingly, when mootness of the named

plaintiff’s claims occurs after initiation of the suit or certification, the

procedures inherent inRule 23 enable some effort to bolster representation

or to find some suitable substitute class representative, following notice

to all or part of the class.”).