Class Actions 101: Defeating Motions For Class Certification In Rule 23(b) Cases

• Published date: 19 February 2024
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions
• Law Firm: Winston & Strawn LLP
• Author: Gayle I. Jenkins, Shawn R. Obi, William Fox and Ashley Wright

Class certification is the most important moment of any putative class action. Before class certification, the defendant's exposure beyond the individual claim is still theoretical rather than concrete. But certification of a class allows a single plaintiff (or a small group of plaintiffs) to formally pursue the claims of numerous absent individuals, which raises the stakes for defendants from claims with nuisance value to potentially crushing class-wide liability. Thus, when a plaintiff files a motion for class certification, the defendant must have a winning response.

On one hand, plaintiffs must win the motion for their case to continue with any force, as a win exposes a defendant to liability to thousands or millions of people. The threat of such massive liability makes a plaintiff's claims economically viable. Without the value added from the absent class members' claims, the cost to continue litigation would far exceed the potential recovery. Losing the motion almost certainly brings a putative class action to its end.

On the other hand, for defendants, defeating certification amounts to de facto victory. Without certification, the case as a whole loses substantial economic value and results in relatively small individual settlements. Once a class is certified, however, a defendant often must choose between a voluntary class-wide settlement payout versus the expense and unpredictability of a jury trial. Either way, a certified class becomes very expensive for defendants.

This article will explain basic strategies defendants should consider in class certification briefing. Although this article paints with broad strokes, a defendant should never accept a one-size-fits-all approach to class certification, nor should a defendant underestimate plaintiffs' counsel. Plaintiff-side class action attorneys constantly adapt their strategies to changes in the case law and to defense lawyers' strategies. Thus, we recommend seeking the guidance of experienced class action litigators who can devise nuanced, tailored arguments that overcome the plaintiff bar's increasingly creative bids for class certification.

RULE 23: PLAINTIFF'S DEMANDING BURDEN

Rule 23 provides the requirement for class certification. Because litigation of non-litigants' claims through court-appointed representatives is meant to be the exception, not the rule,¹ plaintiffs bear the burden of proving that the proposed class meets all of Rule 23's requirements.² Thus, a plaintiff seeking to maintain a class action "must affirmatively demonstrate his [or her] compliance" with Rule 23.³ Under Rule 23(a), a class representative must prove (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.⁴ And if seeking money damages, the class representative must also show predominance and superiority under Rule 23(b)(3).⁵ Because plaintiffs' motions frequently gloss over the Rule's requirements, defendants must use their briefing to remind courts of Rule 23's evidentiary demands and highlight plaintiffs' failures to meet those demands. Defendants must make clear that a plaintiff's failure to meet its burden as to even one of these components should preclude class certification.

Rule 23 also imposes a responsibility on trial courts. Courts must conduct a "rigorous analysis" of the claims, defenses, issues, and evidence to determine whether the proof relevant to each element of a plaintiff's claims'and any affirmative defenses'is individualized or common.⁶ Courts must also resolve factual disputes pertaining to Rule 23's requirements'even if those disputes overlap with the merits of plaintiffs' claims.⁷ Plaintiffs' burden at the class certification stage demands evidence'reliance on the pleadings and speculation alone is insufficient.⁸/sup> Defendants must therefore scrutinize the merits of a plaintiff's case to identify weaknesses in the plaintiff's class certification arguments.

ADDRESSING RULE 23(A) REQUIREMENTS

Rule 23(a) has four requirements. First, plaintiffs must prove numerosity by showing that the putative class is large enough to warrant a class action. Bare assertions of numerosity without any factual support are insufficient.⁹ If a defendant contests numerosity, plaintiffs must respond with evidence. Second, plaintiffs must show that class members' claims turn on common issues of law or fact. General allegations or pleadings, for example, that all class members purchased the same product or transacted with the same business are not enough. Defendants should therefore analyze whether common questions exist that have common answers for all class members and whether these common questions pertain to the elements of the underlying claim.¹⁰ Defendants must go beyond the pleadings to analyze the facts of the case to identify weaknesses in a plaintiff's commonality argument. Third, typicality requires plaintiffs to prove that "the claims or defenses of the representative parties are typical of the claims and defenses of the class."¹¹ Typicality only requires that "the claims of the class representative and class members are based on the same legal or remedial theory," so differing fact situations are not necessarily detrimental to the plaintiff's typicality argument.¹² Defendants must analyze plaintiffs' theories and injuries, defenses to plaintiffs' arguments, and the potential proof of each claim element or defense to determine whether plaintiffs' claims are typical of those of the class.¹³ And fourth, adequacy requires the interests of class representatives to be aligned with the interests of absent class members. Again, defendants must consider how the putative class claims will play out at trial and be prepared to argue that a class representative will need to prove his or her claims in a way that will be prejudicial to the interests of absent class members' claims.

Although the rubber usually meets the road at the more demanding predominance requirement, defendants should not neglect Rule...