Beyond Predominance: Alternative Arguments Against Class Certification
Leverage the Latest Court Decisions to Challenge Class Membership and Defeat Certification.
Class certification proceedings often focus on whether common issues predominate over individual issues. Recent decisions, however, highlight 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 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.
Speakers
Nina Rose
Attorney
Skadden Arps Slate Meagher & Flom
Jordan Schwartz
Counsel
Skadden Arps Slate Meagher & Flom
Geoffrey M. Wyatt
Partner
Skadden Arps Slate Meagher & Flom
Topics
- The federal circuit split on the ascertainability requirement.
- Litigation strategies for challenging typicality and adequacy.
- Different approaches to applying Spokeo v. Robins and Ramirez v. TransUnion L.L.C.
- Different approaches to absent members and personal jurisdiction.
Outline
- Ascertainability
- Typicality and adequacy
- Article III standing
- Personal jurisdiction