The Class Certification Checklist
This week, The Recorder published a column I authored, titled "The Class Certification Checklist." Here is the introduction:
The Supreme Court's decision in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011), is must reading for anyone interested in class actions under Federal Rule of Civil Procedure 23. Justice Antonin Scalia's majority opinion unmistakably signals that the Roberts Court is more cautious in its approach to class actions than previous ones.
Intended for the class action novice, this article reviews the basic requirements for certification of a class action after Wal-Mart.
The Class Certification Motion
Rule 23(c)(1)(A) provides that "[a]t an early practicable time after a [class action is filed,] the court must determine by order whether to certify the action as a class action." Courts routinely permit discovery, including depositions of the class representatives, limited to class certification before full-blown merits discovery.
The class representative must file a motion to certify the class and bears the burden of establishing that each and every requirement for class certification is satisfied. Defendants seeking to limit their exposure often oppose certification and may assert the rights of absent class members. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 803-06 (1985).
The Merits Matter
The Supreme Court in Wal-Mart retreated from its statement in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974), that the merits of the claims in the complaint should not be considered by the district court in deciding a class certification motion. The court instead directed the lower courts to engage in a "rigorous analysis" in determining whether the requirements for certification have been satisfied, recognizing that the analysis "will entail some overlap with the merits of plaintiff's underlying claim. That cannot be helped." Wal-Mart, 131 S. Ct. at 2551 (citation omitted).
You can access the full checklist by viewing the column in its entirety here.