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Class certification is a procedural device available in federal and state courts that allow a party who has filed, or is defending, a lawsuit to represent not only his/her own interests, but the interests of similarly situated parties who are not before the Court – a “class.”  A class does not exist unless and until a court certifies it, which requires the Court to make findings about the suitability of the named plaintiff to represent the class, and other considerations such as whether plaintiff’s claims are typical of the class he/she purports to represent, and whether questions of law or fact common to plaintiff’s claims in the case predominate over evidence, and facts unique to each member of the proposed class.   

This presentation discussed a number trial and appellate court decisions on class certification that highlighted the critical importance to defeating motions for class certification of developing detailed evidence at the class certification phase of how the transactions at issue actually operate and what facts and law would be involved in actually litigating plaintiff’s case.  It also discussed the importance of persuading courts to allow the development of this evidence, as opposed to making the certification decision before discovery has been developed, and strategies for addressing trends in some courts to deciding certification early in the case.