Class Action Insider

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. This article will explain basic strategies defendants should consider in class certification briefing.

On September 28, 2023, Winston & Strawn LLP filed a Rule 23(f) petition in the Second Circuit requesting permission to appeal the district court’s grant of class certification—seeking clarification with respect to the application of the Supreme Court’s decision in Comcast v. Behrend, 569 U.S. 27 (2013).

The Fourth Circuit recently vacated a class certification order in a significant customer data breach case, finding the district court erred by failing to first address the effect a class-action waiver (signed by class members) would have on certification.

In In re White, 2023 WL 2763812 (C.A.D.C., 2023), the D.C. Circuit—splitting with several other circuit courts—reversed a district court’s order that denied class certification because the plaintiffs sought to certify a “fail-safe” class. While acknowledging the recognized criticisms of fail-safe classes, the D.C. Circuit held that a standalone rule against fail-safe classes is an inappropriate and “extra-textual” limitation on certification.

The Supreme Court has not directly ruled on whether issue certification pursuant to Rule 23(c)(4) should be applied as stringently as the Rule 23(b)(3) predominance requirement for class actions. Currently, there is a split among the circuits, which makes issue certification appear more attainable in some circuits than others. Recent cases denying Rule 23(b)(3) class certification reinforce the motivation for putative classes to consider issue certification.

Although courts in the Third Circuit permit the use of affidavits from plaintiffs seeking class certification, they are enforcing an ascertainability requirement that many other circuits don't agree with. Self-identification by putative class members have not held up under the scrutiny of the Third Circuit and alike circuits. Certifying a class may require more evidence in supplementing affidavits and validating class members.