Complex Litigation: Certification Burdens

Abstract

Commentary and analysis of the standards and requirements in order for a court to certify a class action under Fed. R. Civ. P. 23. The article discusses issues relating to the timing for class certification after the filing of a class complaint, and the lack of a requirement for a hearing on a motion for class certification. The article indicates that the days of being able to certify a class action on the pleadings alone, has passed; that most federal courts now impose a “rigorous analysis” standard for a judicial officer in evaluating whether class certification requirements are satisfied. The rigorous analysis standard permits judges to look beyond the pleadings to understand the underlying claims, defenses, relevant facts, and applicable law. Virtually all federal courts agree that the parties seeking class certification carry the burden of demonstrating that class certification requirements are satisfied under the rule and prevailing Rule 23 jurisprudence. Proponents for class certification must satisfy various implicit requirements, such setting forth an adequate class definition, and that class representatives with standing to represent the class. The article discusses various federal and state jurisprudence concerning what constitutes an adequate class definition; the requirement of an identifiable class; and the problem of so-called “fail safe” classes. He article concludes with a discussion of the use of expert witness testimony at class certification and the implications for use of Daubert hearings.