Beyond Predominance: Alternative Arguments Against Class Certification

This CLE course will discuss opposing class certification beyond Rule 23(b)(3)'s predominance requirement, including arguments related to ascertainability, typicality/adequacy, standing, and personal jurisdiction.

Many defendants first rely on arbitration mandates to prevent certification, but that is not always successful, and they must contend with Rule 23. Class certification proceedings often focus on whether common issues predominate over individual issues. Good lawyering, however, recognizes the importance of raising arguments beyond those afforded by Rule 23(b)(3)—including arguments arising from other subsections of Rule 23 and those originating in the case law. Join our panel as they discuss recent developments concerning several such avenues for defending against certification, including:

Ascertainability. Ascertainability demands that class action plaintiffs present a mechanism for identifying prospective class members before the class is certified. Panelists will explain the ongoing federal circuit split on ascertainability issues, discuss recent decisions denying class certification on this ground, and provide insight regarding which arguments seem to be well received in different jurisdictions.

Typicality and adequacy. Rule 23(a)'s typicality and adequacy requirements prevent certification if the claims of the named plaintiff(s) are subject to unique defenses not applicable to the class as a whole. Panelists will discuss recent case law in which class action defendants have used these requirements to their advantage and provide litigation strategies for setting up such arguments on class certification.

Article III standing. Our panel will discuss the different approaches to applying Ramirez v. TransUnion L.L.C. and Spokeo v. Robins and consider the avenues available to challenge class certification on Article III grounds and to leverage standing issues in litigating the other requirements of Rule 23.

Personal jurisdiction. The Supreme Court in Bristol-Myers Squibb Co. v. Superior Court (BMS) left open the question of whether absent class members must establish personal jurisdiction in class actions. The panel will discuss the different approaches being used to fill that gap, recent developments, and the potential effect of BMS on class litigation.

Listen as our authoritative panel discusses recent developments in applying the ascertainability requirement and the likely impact of the latest case law trends for counsel opposing certification.