Trying Typicality—Plaintiff Cherry-Picking and Trial Distortion in <i>Ramirez v. TransUnion LLC</i> and Beyond

This Article supplements scholarly commentary on the U.S. Supreme Court’s 2021 decision in TransUnion LLC v. Ramirez by examining some critical issues that the underlying litigation in the lower courts raised but that the Supreme Court did not address in its review. Although scholars have analyzed and critiqued the Supreme Court’s Ramirez decision, the litigation as a whole has been neglected. The Ramirez trial and the Ninth Circuit opinions that preceded Supreme Court review are fertile vehicles for reflecting on important issues that arise when class actions are tried to a jury. The Article argues that Ramirez illustrates a problem that can arise in any class action trial: the class’s reliance on an unrepresentative, cherry-picked plaintiff to establish class-wide damages or liability. Unrepresentative named plaintiffs are especially problematic in class action trials because the strength of their individual claims against the defendant allows absent class members with far weaker—or even nonexistent—claims to ride the named plaintiff’s “coattails” and recover even where evidence supporting class-wide liability or damages is lacking. The Article mines the Ramirez litigation to develop new insights on the nature and effects of cherry-picked class representatives. It reviews the litigation’s successive stages in detail and analyzes how the cherry-picked plaintiff dynamic appears to have affected each of those stages. Then, the Article suggests practical steps that courts and litigants can take to better recognize and neutralize the distortions that may arise from plaintiff cherry-picking. It recommends that courts more rigorously enforce Rule 23’s typicality requirement and discusses procedural devices that can facilitate courts’ evaluation of a plaintiff’s typicality.