The case has been praised, but is isolated. Outside of that narrow exception, inapplicable to this case, hypertechnicality reigns. No cases have addressed the latter question, though if penalties can be collected by people who have not been harmed by the violation, we suppose they can be collected by people actually benefited by them. Second, and more important, the plaintiffs are attempting to sue on behalf of a class of similarly situated customers of Bank United. The bank elected to move for summary judgment before the district judge decided whether to certify the suit as a class action.
Class actions are expensive to de- fend.
One way to try to knock one off at low cost is to seek summary judgment before the suit is certified as a class action. The effect is to moot the question whether to certify the suit as a class action unless the lawyers for the class manage to find another representative. They could not here because the ground on which the district court threw out the plaintiff's claims would apply equally to any other member of the class. When the procedure that we have just described is followed, the defendant loses the preclusive effect on sub- sequent suits against him of class certification but saves the added expense of defending a class action and may be content to oppose the members of the class one by one, as it were, by moving for summary judgment, every time he is sued, before the judge presiding over the suit decides whether to certify it as a class action. On to the merits.