Complex Litigation: Class Actions Superiority

Abstract

Commentary and analysis of the class action Rule 23(b)(3) requirement that the proponents seeking class certification of a damage class act establish that pursuing relief through a class action is the superior way of accomplishing relief. The superiority requirement is one of two additional requirements – the other is predominance of common questions – that plaintiffs must demonstrate for a court to certify a (b)(3) class. This article discusses the factors in Rule 23(b)(3) that a court may take into account in evaluating the superiority requirements. The article also discusses the varying approaches and tests that federal and state courts have applied in assessing the superiority requirement. In Texas, the Texas Supreme Court has suggested that in order to demonstrate superiority the class attorneys may need to furnish the court with a trial plan to evaluate whether a class action is the superior means to resolve class claims. Southwestern Refining Co. v. Bernal, 22 S.W.3d 425 (Texas 2000). Finally, the article discusses the novel approach to the superiority requirement articulated by Judge Easterbrook in the Seventh Circuit’s decision in In re Bridgestone/Firestone Prods. Liab. Litig., (7th Cir. 2002), viewing the superiority question in the context of marketplace efficiency and economy.