In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3446

SALLY A. RANDALL and RONA C. PEPMEIER,

individually and on behalf of all others 

similarly situated,

Plaintiffs-Appellants,

and

KAREN GOVERNOR and BARBARA JONES,

Proposed Intervening Plaintiffs/Appellants,

v.

ROLLS-ROYCE CORPORATION, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:06-cv-860-SEB-WGH—Sarah Evans Barker, Judge.

ARGUED FEBRUARY 16, 2011—DECIDED MARCH 30, 2011

Before POSNER, FLAUM, and SYKES, Circuit Judges.

POSNER, Circuit Judge. The plaintiffs in this class action

suit on behalf of more than 500 female employees of a
2 No. 10-3446

Rolls-Royce plant in Indiana that manufactures aircraft,

industrial, and marine engines appeal from the denial of

class certification and the subsequent grant of RollsRoyce’s motion for summary judgment. (We refer to the

defendants, all of which are affiliated corporations, collectively as “Rolls-Royce.”) The plaintiffs charge Rolls-Royce

with sex discrimination, in violation of Title VII and the

Equal Pay Act, in paying the members of the class less than

comparable male employees by setting the base pay of

women employees in the class members’ compensation

categories below that of male employees in the same

categories, and in denying them promotions they would

have received had they been men. There are other claims,

which we’ll not discuss, instead relying on the district

judge’s cogent analysis of them in three opinions: 2010

WL 987484 (N.D. Ind. Mar. 12, 2010); 2010 WL 1948222

(N.D. Ind. May 13, 2010); 742 F. Supp. 2d 974 (N.D.

Ind. 2010).

To appeal a district court’s denial of class certification, as

the plaintiffs are doing in this case, is a risky strategy,

especially when, as in this case, the class is proposed to be

certified under Rule 23(b)(2) of the civil rules. Under that

rule, which governs class actions in which “final injunctive

relief or corresponding declaratory relief is appropriate

respecting the class as a whole,” notice to unnamed class

members is optional. Rule 23(c)(2)(A). The consequence

is that if the denial of certification is reversed but the

decision on the merits, adverse to the class, is affirmed, the

claims of the unnamed members, as of the named members, will be barred unless (see Cooper v. Federal Reserve

Bank, 467 U.S. 867, 878-80 (1984)) their claims are

dissimilar to those of the named plaintiffs. Bolin v. Sears,
No. 10-3446 3

Roebuck & Co., 231 F.3d 970, 975-76 (5th Cir. 2000); Baby

Neal ex rel. Kanter v. Casey, 43 F.3d 48, 58-59 (3d Cir. 1994);

Greene v. Los Angeles Unified School Dist., 246 F.3d 674 (9th

Cir. 2000) (unpublished). Even an unnamed class member

who has a much stronger claim than the named plaintiffs

may be hurt by certification, because a subsequent court

may assume that certification would have been denied had

the named plaintiff’s claims not been typical of those of all,

or at least the vast majority, of the unnamed class members. In contrast, when the class is certified under Rule

23(b)(3), which governs class actions in which monetary

relief is the primary relief sought, the unnamed class

members must be notified and allowed to opt out of the

class action, Rule 23(c)(2)(B); Eisen v. Carlisle & Jacquelin,

417 U.S. 156, 176 (1974), which gives them a chance to

litigate their claims in a new suit. Yet those who do not

opt out will be bound by the judgment in the class action.

Nagel v. ADM Investor Services, Inc., 217 F.3d 436, 442

(7th Cir. 2000); Amati v. City of Woodstock, 176 F.3d 952,

957 (7th Cir. 1999).

Conversely, a defendant confident of prevailing on the

merits will often be well advised not to oppose certification, though there is some risk in doing so (so perhaps we

should say a defendant utterly confident of winning on the

merits would be well advised not to oppose certification).

Rolls-Royce is confident of prevailing on the merits, and

rightly so as we’ll see, but follows the lawyer’s reflexive

strategy of denying whatever the opponent asserts.

Certification and merits cannot always be separated. For

example, certification may be denied because the named

plaintiff’s claim is atypical of the claims of the other
4 No. 10-3446

members of the class, and it may be atypical because of a

possibly complete defense to his claim that may not apply

to claims of the other class members, as in CE Design

Limited v. King Architectural Metals, Inc., No. 10-1850, 2011

WL 938900, at *4-6 (7th Cir. Mar. 18, 2011). And then

the only effect if the denial of certification is upheld may

be the substitution, in a new class action suit, of another

class member for the named plaintiff in the old suit, and

in that event the defendant’s victory will be Pyrrhic;

substitution is an issue in this case, as we’ll see.

But a plaintiff’s victory in overturning the denial of

certification may be equally Pyrrhic if he prevails only

by occluding significant differences between his claim

and that of other class members by insisting on its typicality, thus making it more difficult for unnamed class

members to convince a court that their own claims are

stronger than his (implying that his is atypical) and so

should not be barred by a judgment against him.

We’ll discuss the merits and then certification.

Rolls-Royce determines the compensation of its employees (all its employees, but this case concerns just those

exempt from the minimum-wage and maximum-hours

provisions of the Fair Labor Standards Act) in two steps.

The first is to establish a broad pay range for each class

of employees whom it deems of equal value to the company. We’ll call these broad ranges “compensation categories.” The class is spread over five of these categories.

The second step, which is based on Rolls-Royce’s recognition that it must meet competition from other employers for the employees it wants to hire or retain, is to
No. 10-3446 5

create within each broad range a narrower range based on

prevailing market wages for each of the jobs in question—“prevailing market wages” meaning wages offered

by competing employers. Because of these ranges within

ranges, the class that the plaintiffs want certified sprawls

over twenty different compensation grades, including

supervisory and nonsupervisory positions and encompassing starting salaries ranging from $40,050 to $190,750.

Thus, while in theory the jobs within each compensation

category are of equal value to the company (we imagine

that Rolls-Royce’s motive for saying this—thereby unwittingly arming its adversaries in this case—is to improve

employee morale by reassuring each employee that he

or she is as good as others in the same compensation

category even if paid less than they), the jobs are not

equally valued by the market. Recognizing that it therefore must pay some employees in each category more

than others, Rolls-Royce specifies different levels of base

pay for different jobs within a category and (further

complicating comparison across jobs) authorizes supervisors to make ad hoc pay adjustments; notably, each

employee is eligible to obtain a percentage of his base

pay as additional compensation, the percentage being

based on an evaluation of the employee’s performance

by his superior.

In 2003, the year before the beginning of the complaint

period, the average base pay (that is, the base pay before

the performance add-on just noted) of male employees in

the twenty compensation grades was about 5 percent

higher than that of the women in those grades. That

differential persisted throughout the complaint period.
6 No. 10-3446

And because the performance adjustments were calculated

as percentages of base pay, base pay influenced total pay

throughout the period, though other adjustments may

have diluted that influence or for that matter eliminated

it. Of course if the women outperformed the men, they

might catch up and even exceed them in pay, just by

virtue of the performance adjustment. Yet they would

exceed them by less than if their base pay had been

equal to the men’s at the outset. Suppose that in year one

W’s pay (after performance adjustment) is $90,000, and so

this becomes her base pay in year two. M’s pay is $100,000

in year one. In year two W receives a 20-percent performance bonus and M only a 5-percent bonus. As a result

W’s pay now exceeds M’s—it is $108,000 to his $105,000.

But if W’s base pay in year two had been equal to M’s, her

second-year pay would have been $120,000, and so she

was hurt by having started from a lower base—the difference in year-one base pay being attributable, according

to the plaintiffs, to sex discrimination. 

If the difference was attributable to sex discrimination,

Rolls-Royce’s failure to eliminate the difference would, by

perpetuating discrimination, violate Title VII. Bazemore

v. Friday, 478 U.S. 385, 394-96 (1986) (concurring opinion—joined, however, by all the Justices); Hildebrandt

v. Illinois Dep’t of Natural Resources, 347 F.3d 1014, 1025-

29 (7th Cir. 2003); Goodwin v. General Motors Corp., 275

F.3d 1005, 1009-10 (10th Cir. 2002). It is true that the prima

facie case for a violation of the Equal Pay Act, which the

plaintiffs also allege, does not require proof of discrimination, but only of unequal pay for “equal work on jobs

the performance of which requires equal skill, effort, and
No. 10-3446 7

responsibility, and which are performed under similar

working conditions.” 29 U.S.C. § 206(d)(1); see Fallon

v. Illinois, 882 F.2d 1206, 1213-14 (7th Cir. 1989). But the

plaintiffs have been unable to identify any male worker

who satisfied the stringent statutory requirement of

equality of job skills, etc., and so the district judge was

right to grant summary judgment for Rolls-Royce on the

Equal Pay Act claim.

Rolls-Royce’s expert, Bernard R. Siskin, shot down the

plaintiff’s theory of discrimination in base pay under Title

VII by showing that once differences in the jobs performed

by male and female employees in each compensation

category are corrected for, the sex-correlated difference in

base pay disappears. Adjusting base pay in response to

market competition (which is different from other adjustments, such as those based on favorable evaluation of an

employee’s performance) takes place within a range that

allows for considerable variance. The range is between 25

percent below and 25 percent above the median market

wage for the jobs in the category. Remember that jobs

are placed in the same compensation category because

they are deemed by Rolls-Royce to be of equal value to

the company, but since it cannot pay less (and will not

pay more) than the market wage for a particular job,

the base pay for the category is a range that permits

differentiation because the market wage for a category of

different jobs is also a range. A personnel officer might be

as valuable to Rolls-Royce as an aeronautical engineer, but

if the latter commands a higher wage in the market for

aeronautical engineers, Rolls-Royce will have to pay him

or her more; and if, as Siskin found, there were at the
8 No. 10-3446

outset of the complaint period more male than female

employees in jobs that command a higher market wage, the

average compensation of male employees would exceed

that of female employees in the same job category for a

reason unrelated to sex discrimination. If cardiologists

command a higher market wage than internists, they will

be paid more even if the clinic that employs both types

of physician regards them as equally valuable. Maybe

workers in different jobs that are in some sense of comparable value, though the market thinks otherwise, should

be paid the same as a moral matter; but “comparable

worth” is not recognized as a theory on which to base

a federal discrimination suit. E.g., Lang v. Kohl’s Food

Stores, Inc., 217 F.3d 919, 923 (7th Cir. 2000); American

Nurses’ Ass’n v. Illinois, 783 F.2d 716, 719-20 (7th Cir. 1986);

Mikula v. Allegheny County, 583 F.3d 181, 183, 185 (3d

Cir. 2009) (per curiam); United Auto Workers v. Michigan,

886 F.2d 766, 768-69 (6th Cir. 1989). Anyway it is not

urged by the plaintiffs in this case.

In concluding that the base-pay difference was attributable to discrimination, the plaintiffs’ expert, Richard

Drogin, made errors besides failing to adjust for differences

in the jobs occupied by male and female employees.

We’ll mention only one of these errors: he included in the

comparison employees hired after the beginning of the

complaint period. That made no sense without an

inquiry, which he did not attempt, into the reasons for

the different starting salaries of male and female hires.

Remember that the claim is that Rolls-Royce discriminated

against women by failing to erase a disparity in base

pay that existed at the outset of the complaint period; for
No. 10-3446 9

all we know it did erase it, and the reason for the apparent

persistence of the disparity is that new female hires

were, for reasons unknown but not contended to be discriminatory, paid less than new male hires.

Having failed to rebut Siskin’s key finding, either with

Drogin’s defective report or anything else, the plaintiffs’

complaint about base-pay discrimination fails. We add

(it bears on the issue of class certification, discussed below)

that in several of the years in question the named plaintiffs’

base pay exceeded, with only a few exceptions, that of the

male employees in the plaintiffs’ compensation grades

who the plaintiffs claimed were comparable to them.

The named plaintiffs are more concerned with promotions they failed to get than they are with the largely

nonexistent (for them at least) base-pay differentials.

Yet Siskin’s study found that women in the class members’ five compensation categories are promoted on

average more rapidly than men. Furthermore, while

many promotions in a firm or other institution are more

or less routine and even automatic, this is not true at the

level of our plaintiffs, both of whom are in the highest

of the five compensation categories, earning well over

$100,000. Rolls-Royce has relatively few employees in this

rarefied stratum and their work is not fungible. They

do different jobs involving different skills and experience.

The fact that some of the male employees who the plaintiffs contend were promoted ahead of them are, like them,

called “Director of Operations” has no significance; the title

covers a multitude of positions differing in authority (such

as number of employees supervised) and responsibility.
10 No. 10-3446

In beginning to speak of facts peculiar to the two named

plaintiffs, we are veering from merits issues to the certification issue. Because the district judge denied class certification, thus extruding the unnamed class members from the

case, her grant of summary judgment spelled dismissal

on the merits only of the named plaintiffs’ claims. Both

their pay claims and their promotion claims may well be

weaker than those of class members in lower compensation grades than theirs. If we reverse the denial of class

certification, we would, as explained earlier, jeopardize

the ability of unnamed class members to obtain relief in

individual suits or in a subsequent class action.

Fortunately for the class, the plaintiffs’ challenge to the

denial of class certification fails. Their claims are, as we just

noted, significantly weaker than those of some (perhaps

many) other class members; and as explained in CE Design

Limited v. King Architectural Merits, Inc., supra, 2011

WL 938900, at *4-6, named plaintiffs who are subject to

a defense that would not defeat unnamed class members

are not adequate class representatives, and adequacy of

representation is one of the requirements for class certification. Fed. R. Civ. P. 23(a)(4); Amchem Products, Inc. v.

Windsor, 521 U.S. 591, 625-27 (1997). The district judge said

that the plaintiffs’ claims were not “typical of the claims

or defenses of the class,” also a requirement (Rule

23(a)(3)), though the usual practical significance of lack

of typicality, as again explained in CE Design, is that it

undermines the adequacy of the named plaintiff as a

representative of the entire class.

The adequacy of the plaintiffs’ representation is further

undermined by the existence of a conflict of interest,
No. 10-3446 11

beyond that implicit in their having weaker claims than

some of the unnamed class members, between them and

unnamed class members. Amchem Products, Inc. v. Windsor,

supra, 521 U.S. at 625; Gilpin v. American Federation of State,

County & Municipal Employees, 875 F.2d 1310, 1313 (7th Cir.

1989); Hines v. Widnall, 334 F.3d 1253, 1258 (11th Cir. 2003)

(per curiam). The plaintiffs have authority within the

company with regard to the compensation of some, and

maybe many, of the unnamed class members and, as

worrisome, over male employees in the same job categories

as the class members. Although we doubt that the plaintiffs

would deliberately depress the salary of female employees

whom they supervise, or increase the salary of male

employees whom they supervise, in order to create evidence of discrimination, the possibility of such strategic

conduct (which might be unconscious) creates a conflict of

interest between the plaintiffs and unnamed members of

the class, (as well as with Rolls-Royce, if the plaintiffs

raised the salaries of male employees in the class members’

compensation categories in order to create evidence of sex

discrimination). A class representative’s conflict of interest

is an independent ground for denial of class certification.

Wagner v. Taylor, 836 F.2d 578, 595-96 (D.C. Cir. 1987);

Wells v. Ramsay, Scarlett & Co., 506 F.2d 436, 437-38 (5th

Cir. 1975). There is even evidence that the plaintiffs participated in decisions concerning female employees’

compensation that, on their theory of the case, were

discriminatory.

The plaintiffs made two attempts in the district court to

avoid a finding that they are inadequate class representatives. The first was to cast this as an injunction class action

suit, which is to say a class action suit governed by Rule
12 No. 10-3446

23(b)(2). It is true that Rule 23(b) (captioned “Types of

Class Actions”) is explicit that the requirements set forth

in Rule 23(a) (captioned “Prerequisites [to Class Actions”]),

such as the requirement that a named plaintiff be an

adequate class representative, apply to all types of class

action, including therefore class action suits seeking

injunctive relief. But depending on the precise terms of the

relief sought, an injunction suit might avoid adequacy

issues that a class action suit for damages, which would be

governed by Rule 23(b)(3), would present. It’s easier for a

named plaintiff to prove he’s an adequate class representative in an injunctive action because usually there is

less variance in injunctive relief sought for members of the

class than in damages sought—imagine if the plaintiffs in

this case were just seeking an injunction commanding basepay equalization between male and female employees.

But that’s not what they’re seeking, exclusively or even

mainly; and indeed this isn’t a proper Rule 23(b)(2) suit.

Class action lawyers like to sue under that provision

because it is less demanding, in a variety of ways, than

Rule 23(b)(3) suits, which usually are the only available

alternative. Mark A. Perry & Rachel S. Brass, “Rule

23(b)(2) Certification of Employment Class Actions:

A Return to First Principles,” 65 N.Y.U. Annual Survey of

Am. Law 681, 689-92 (2010); Roger H. Trangsrud,

“The Adversary System and Modern Class Action Practice,” 76 Geo. Wash. L. Rev. 181, 186-87 (2008). Of particular

significance, “plaintiffs may attempt to shoehorn damages

actions into the Rule 23(b)(2) framework, depriving class

members of notice and opt-out protections. The incentives

to do so are large. Plaintiffs’ counsel effectively gathers
No. 10-3446 13

clients—often thousands of clients—by a certification

under (b)(2). Defendants attempting to purchase res

judicata may prefer certification under (b)(2) over (b)(3).”

Bolin v. Sears, Roebuck & Co., supra, 231 F.3d at 976. How far

Rule 23(b)(2) can be stretched is the issue in the gigantic

class action against Wal-Mart, Dukes v. Wal-Mart Stores,

Inc., 603 F.3d 571, 619 (9th Cir.) (en banc), cert. granted, 131

S. Ct. 795 (2010), now before the Supreme Court. The

present case is not as big a stretch, but it is big enough.

True, the only monetary relief sought is back pay; true,

too—contrary to the common but erroneous notion that

courts of equity can’t award monetary relief—they can do

so if the award is merely incidental to the grant of an

injunction or declaratory relief: “incidental” in the sense

of requiring only a mechanical computation. That is

the “clean-up” doctrine of equity. Reich v. Continental

Casualty Co., 33 F.3d 754, 756 (7th Cir. 1994); Medtronic, Inc.

v. Intermedics, Inc., 725 F.2d 440, 442-43 (7th Cir.

1984); Mowbray v. Moseley, Hallgarten, Estabrook &

Weeden, Inc., 795 F.2d 1111, 1113-14 (1st Cir. 1986). In such

a case, to make the class representative bring a second suit,

for damages, on top of his injunctive action would

create pointless redundancy. In re Allstate Ins. Co., 400 F.3d

505, 507 (7th Cir. 2005); see also Lemon v. International Union

of Operating Engineers, 216 F.3d 577, 580-81 (7th Cir.

2000), and cases cited there.

The plaintiffs argue that if only equitable relief is sought,

a class action suit may be maintained under Rule 23(b)(2)

even if the equitable relief is mainly monetary. We disagree. See Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311,
14 No. 10-3446

331-32 (4th Cir. 2006). To read “injunctive” in the rule to

mean “equitable” is to become mired in sticky questions of

differentiating between “legal” and “equitable” actions—and such questions abound. See, e.g., Medtronic, Inc.

v. Intermedics, Inc., supra. We can avoid the mire by recognizing that Rule 23(b)(2) class actions are limited to cases

in which “final injunctive relief or corresponding declaratory relief” is appropriate, rather than extending to all

cases in which any kind of equitable relief is sought.

Hohider v. United Parcel Service, Inc., 574 F.3d 169, 202 (3d

Cir. 2009). The monetary relief sought in a case, whether

denominated legal or equitable, may make the case unsuitable for Rule 23(b)(2) treatment. Kartman v. State Farm

Mutual Auto Ins. Co., 2011 WL 488879, at *9 (7th Cir. Feb. 14,

2011); In re Allstate Ins. Co., supra, 400 F.3d at 507-08; Reeb v.

Ohio Dep’t of Rehabilitation & Correction, 435 F.3d 639,

651 (6th Cir. 2006). As this case illustrates: calculating the

amount of back pay to which the members of the class

would be entitled if the plaintiffs prevailed would require

500 separate hearings. The monetary tail would be wagging the injunction dog. An injunction thus “would not

provide ‘final’ relief as required by Rule 23(b)(2). An

injunction is not a final remedy if it would merely lay an

evidentiary foundation for subsequent determinations of

liability.” Kartman v. State Farm Mutual Auto Ins. Co., supra,

2011 WL 488879, at *8.

It would not be enough, for example, to award all

members of the class 5 percent of their earnings during the

complaint period, to erase the allegedly discriminatory

differential in pay between male and women employees;

for if the women’s salaries had been 5 percent higher from
No. 10-3446 15

the outset, they might have received lower performance or

other pay raises above their base pay. Remember that

compensation is influenced by the labor market: women

underpayed because of the base-pay differential would be

more likely to receive a compensatory pay adjustment than

if their base pay had been higher.

The claim of discrimination in promotions presents a

further complication. Because Rolls-Royce does not have

a fixed compensation schedule for employees in the

compensation categories at issue, individualized hearings

would be required to determine how much higher an

employee’s pay would have been had she received a

promotion denied her on the ground of her sex.

The proper approach in this case would thus have been

for the plaintiffs to seek class certification under Rule

23(b)(3)—which requires full notice so that class members

can opt out if they want to bring an independent suit for

damages or other monetary relief—but to ask for injunctive

as well as monetary relief. In re Allstate Ins. Co., supra,

400 F.3d at 508; see Laura J. Hines, “Challenging the Issue

Class Action End-Run,” 52 Emory L.J. 709, 716-17, 741-

43 (2003). It is only when the primary relief sought

is injunctive, with monetary relief if sought at all mechanically computable, that elaborate notice is not required

and so Rule 23(b)(2) is applicable because the claims of

the class members are uniform (or as the cases sometimes

say, “cohesive”). Jefferson v. Ingersoll Int’l, Inc., 195 F.3d 894,

897-99 (7th Cir. 1999); Thorn v. Jefferson-Pilot Life Ins.

Co., supra, 445 F.3d at 331-32; Coleman v. General Motors

Acceptance Corp., 296 F.3d 443, 447-48 (6th Cir. 2002);
16 No. 10-3446

Murray v. Auslander, 244 F.3d 807, 812-13 (11th Cir. 2001);

Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 (5th Cir.

1998).

The plaintiffs’ other attempted end run around the

district judge’s denial of certification is to ask us to

reverse her denial of their motion to substitute two

other class members for the original named plaintiffs—

substitutes who might have a more typical (and, not

incidentally, a stronger) claim than the original plaintiffs.

Such substitution (via permissive intervention by an

unnamed plaintiff, who if intervention is allowed becomes

the named plaintiff and thus the class representative) is

possible. See Fed. R. Civ. P. 23(d)(1)(B)(iii), 24(b); Champ v.

Siegel Trading Co., 55 F.3d 269, 272-74 (7th Cir. 1995);

Birmingham Steel Corp. v. TVA, 353 F.3d 1331, 1339 (11th

Cir. 2003); McKowan Lowe & Co. v. Jasmine, Ltd., 295 F.3d

380, 383, 389 (3d Cir. 2002). But it’s not automatic, and the

district judge was on sound ground in ruling that the

motion, filed on March 26, 2010, came too late. See Fed. R.

Civ. P. 24(b)(3) (“in exercising its discretion [in deciding

whether to permit intervention], the court must consider

whether the intervention will unduly delay or prejudice

the adjudication of the original parties’ rights”).

The motion was not filed until after the judge had denied

class certification—and that was almost four years after

the suit had begun and long after it was plain that there

were substantial doubts about the typicality of the

named plaintiffs’ claims and the adequacy of their representation of the class. As the district judge explained,

“until [the plaintiffs] secured the assistance of additional,
No. 10-3446 17

more experienced counsel, this case progressed at an

almost imperceptible pace, with Plaintiffs seeking and

receiving numerous extensions of the deadlines for filing

their class certification motion, to the point that the Court

finally had to admonish counsel regarding their duty of

diligence and to voice our concerns over the apparent

limited resources being devoted to the case.” 2010 WL

987484, at *13. Things sped up for a time when the plaintiffs retained a firm “with apparently much needed class

action expertise and additional resources”—but the firm

soon withdrew, citing irreconcilable differences with the

plaintiffs’ original lawyers. Id. The judge remarked that

“local counsel has been in the ‘driver’s seat’ throughout the

case, and has set, at best, a plodding pace.” 2010 WL

1948222, at *3.

It would go too far to suggest that unless substitution for

the original named plaintiffs is sought as soon as a substantial challenge to certification is made, the district

judge is justified in denying it. Such a rule might involve

constant interruptions of the proceeding—procedural hiccups—as nervous class action counsel tried to add new

class representatives every time the defendants raised an

objection to certification. But it was obvious from the

outset that these named plaintiffs faced a serious challenge to their status as class representatives. And

with the entire class in one location (a single plant in

Indiana), class counsel had ample opportunity to sift

through potential named plaintiffs before deciding on

Randall and Pepmeier. Intervention shouldn’t be allowed just to give class action lawyers multiple bites at

the certification apple, when they have chosen, as should
18 No. 10-3446

have been obvious from the start, patently inappropriate

candidates to be the class representatives. Griffin v.

Singletary, 17 F.3d 356, 359-60 (11th Cir. 1994); see also

Sanford v. MemberWorks, Inc., 625 F.3d 550, 560-61 (9th Cir.

2010). The judge was justified in denying the motion

to intervene.

AFFIRMED.

3-30-11