Making the Motion for Class Certification (Federal)

Posted on 11-02-2018

By: Jim Wagstaffe and The Wagstaffe Group

CLASS CERTIFICATION PROCEDURES ARE GOVERNED BY Rule 23(c)(1)(A) of the Federal Rules of Civil Procedure (Rule 23): “At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.”1 If the court denies certification, the action will proceed as an individual action. The court should not consider the impact of denying class certification in making its ruling.2

Procedures

Use of the term “at an early practicable time” in Rule 23(c)(1) (A) indicates that the court must balance an early resolution of the certification question against the needs of the parties to have a meaningful amount of time to muster the resources to bring or defend against a motion for certification.3

Local rules and case management orders frequently state deadlines for disclosing class certification expert reports and filing certification motions.

It is within the court’s sound discretion to deny an untimely motion for certification, particularly if the motion is filed past a court-set deadline.4

Especially in an action seeking money damages, certification nearly always takes place before a merits determination. This prevents against the one-way intervention problem, by which non-parties join a successful suit after the fact and avoid any risk. The one-way intervention rule prevents defendants from “being pecked to death by ducks. One plaintiff could sue and lose; another could sue and lose; and another and another until one finally prevailed; then everyone else would ride on that single success.” 5

A court retains the discretion to rule on dispositive motions before class certification, particularly if the plaintiff’s claims are weak or frivolous or if an easily adjudicated affirmative defense may impact class certification.6

The one-way intervention rule does not prevent a district court from issuing a preliminary injunction in a putative class action, because the injunction ruling is merely a prediction regarding the merits and not a final determination.7

A district court has the obligation to determine whether class allegations may proceed prior to any party moving for a ruling.8 A court may deny class certification even before the plaintiff files a motion requesting certification.9

Certification Motions

Upon motion, either party may seek an order certifying a class or a preemptive motion to decertify a class.10

The defendant’s motion may take the form of a motion to strike the class allegations. However, early motions to strike are not likely to be granted if the plaintiff has not had an adequate time to support his or her Rule 23 allegations.11

The party seeking class certification always bears the burden of establishing the Rule 23(a) requirements by a preponderance of the evidence.12

The court may examine the merits if there are issues with the Rule 23 question. The “‘rigorous analysis’ (of Rule 23) will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped...Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, for example, jurisdiction and venue, is a familiar feature of litigation.”13 In Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 459 (2013), the U.S. Supreme Court ruled that there are limits to merits analysis at the class certification stage. “Rule 23(b) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class.”14

However, a court may not decline to certify a class action simply on the basis that the claims lack merit.15

As with any other motion, the plaintiff must include the evidence needed to establish all four of the Rule 23(a) factors and the grounds that establish the requested Rule 23(b) class.16

The Supreme Court has clearly stated that Rule 23 does not set forth “a mere pleading standard.” Instead, evidence sufficient to support a rigorous analysis is needed.17

The evidence presented in support of a motion for class certification need not be presented in a form that would be admissible at trial.18

Evidence Considered

Evidence that may be considered on a motion includes:

  • Pleadings. While not conclusive, the pleadings set forth the touchstone for the Rule 23(a) analysis.19 In rare cases, a denial of class certification may be solely based on pleadings that conclusively show the inability to meet Rule 23 requirements.20
  • Sufficient extrinsic evidence. The parties should supplement the pleadings with sufficient material, for example, deposition testimony, discovery responses, or items subject to judicial notice, to allow an informed judgment on each of Rule 23(a)’s requirements.21
  • Expert reports. Expert reports are frequently used in class certification motions. The court may consider relevant expert opinions in making its certification decision. In dicta, the Supreme Court has suggested that the heightened evidentiary Daubert standard applies to expert reports related to certification.22 Some courts require an expert opinion in support of class certification to meet the same standard of admissibility used at trial.23 Other courts, recognizing the limits of the certification inquiry, simply consider the expert testimony as it relates to the standards relevant to class certification.24
  • Sampling evidence. Sampling evidence, either scientific or anecdotal, may be used in a class certification motion, provided it meets relevant evidentiary standards and is truly representative, in that it supports the commonality and predominance factors.25 The Supreme Court has recently disavowed a “categorical exclusion” of representative evidence. Instead, “Its permissibility turns . . . on the degree to which the evidence is reliable.”26 For example, where workers were not paid for donning or doffing their work uniforms, damages varied between class members, and defendant did not keep accurate records, the plaintiff class properly relied on “representative evidence” to determine the total number of hours that were not compensated. Class certification was properly granted.27
  • Matters subject to judicial notice. The court may consider matters of which it may take judicial notice in ruling on class certification issues.28

Ruling on Certification

If the court denies certification, the action will proceed as an individual action. The court should not consider the impact of denying class certification in making its ruling.29

If the court grants certification, it must issue an order pursuant to Rule 23(c)(1)(B) that:

  • Defines the class
  • Identifies the class claims, issues, or defenses
  • Appoints class counsel

For classes certified under Fed. R. Civ. P. 23(b)(3), the order must also direct the best notice practicable under the circumstances.

Certification may be conditional. The order granting or denying class certification may be conditional based on certain developments in the action.30

A court may order subclasses. Each subclass must meet the requirements of Rule 23.31

To read the full practice note in Lexis Practice Advisor, follow this link.


James M. Wagstaffe is a renowned author, litigator, educator, and lecturer, and the premier industry authority on pretrial federal civil procedure. He is a partner and co-founder of Kerr & Wagstaffe LLP, where he heads the firm’s Federal Practice Group. He maintains a diverse litigation practice, including complex litigation, professional and governmental representation, will and trust disputes, legal ethics, First Amendment cases, and appeals in state and federal courts. He has particular expertise on virtual world issues, including electronic discovery and wi-fi technology. In 2017, California Lawyer named him Attorney of the Year for his successful representation of The State Bar of California in a high-profile privacy trial. He has authored and co-authored a number of publications, including The Wagstaffe Group® Practice Guide: Federal Civil Procedure Before Trial. As one of the nation’s top authorities on federal civil procedure, Jim has helped shape the direction and development of federal law.


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1. Fed. R. Civ. P. 23(c)(1)(A). 2. Kovaleff v. Piano, 142 F.R.D. 406, 408 (S.D.N.Y. 1992) (whether denial of class certification would result in the putative class never obtaining relief is irrelevant to whether the named plaintiffs meet the requirements of Rule 23). 3. Fed. R. Civ. P. 23(c)(1)(A); Adv. Comm. Notes to 2003 Amendments to Fed. R. Civ. P. 23. 4. McCarthy v. Kleindienst, 741 F.2d 1406, 1411–12 (D.C. Cir. 1984); Burkhalter v. Montgomery Ward & Co., 676 F.2d 291, 294 (8th Cir. 1982) (failure to file motion for class certification by the time set by the court justified striking of class allegations); Nicholas v. Deposit Guar. Nat’l Bank, 182 F.R.D. 226, 235 (S.D. Miss. 1998). 5. Premier Elec. Constr. Co. v. Nat’l Elec. Contractors Ass’n., Inc., 814 F.2d 358, 362 (7th Cir. 1987); see also Philip Morris Cos. v. Nat’l Asbestos Workers Med. Fund, 214 F.3d 132, 135 (2d Cir. 2000). 6. Authors Guild, Inc. v. Google Inc., 721 F.3d 132, 134 (2d Cir. 2013); Thomas v. UBS AG, 706 F.3d 846, 848 (7th Cir. 2013). 7. Gooch v. Life Inv’rs Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012). 8. Bieneman v. Chicago, 838 F.2d 962, 963–64 (7th Cir. 1988); McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th Cir. 1981). 9. Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir. 2011). 10. Fed. R. Civ. P. Rule 23; Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 941 (9th Cir. 2009) (“A defendant may move to deny class certification before a plaintiff files a motion to certify a class”). 11. Cholakyan v. Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220, 1245 (C.D. Cal. 2011) (rare to strike class allegations at the pleading stage). 12. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2009); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008); Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322 (11th Cir. 2008). 13. WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). 14. Comcast Corp. v. Behrend, 569 U.S. 27, 35 (2013) (merits inquiries permitted as needed for Rule 23 analysis). 15. Stockwell v. City & County of San Francisco, 749 F.3d 1107, 1112 (9th Cir. 2014) (forbidding “free ranging merits inquiries” to prevent class certification). 16. Marlo v. UPS, Inc., 639 F.3d 942, 947 (9th Cir. 2011). 17. Wal-Mart Stores, 564 U.S. at 351; Parsons v. Ryan, 754 F.3d 657, 674 (9th Cir. 2014). 18. Brown v. Abercrombie & Fitch Co., 2015 U.S. Dist. LEXIS 176214, at *12 (C.D. Cal. July 16, 2015). 19. Wal-Mart Stores, 564 U.S. at 350-51; Blackie v. Barrack, 524 F.2d 891, 900–01 (9th Cir. 1975). 20. Huff v. N.D. Cass Co., 485 F.2d 710, 713 (5th Cir. 1973). 21. Wal-Mart Stores, 564 U.S. at 350-1; Blackie, 524 F.2d at 901 n.17. 22. Wal-Mart Stores, 564 U.S. at 354 (“The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that is so . . . ”). 23. Am. Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 815–16 (7th Cir. 2010). 24. In re Zurn Pex Plumbing Products Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). 25. Wal-Mart Stores, 564 U.S. at 358; Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045-49 (2016). 26. Tyson Foods, 136 S. Ct. at 1046; Day v. Celadon Trucking Servs., 827 F.3d 817 (8th Cir. 2016). 27. Tyson Foods, at 1047-49 (2016). 28. Fed. R. Evid. 201; Brown, 2015 U.S. Dist. LEXIS 176214, at *17 (noting limitations of judicial notice). 29. Kovaleff, 142 F.R.D. at 408 (whether denial of class certification would result in the putative class never obtaining relief is irrelevant to whether the named plaintiffs meet the requirements of Rule 23). 30. Fed. R. Civ. P. 23(c)(1)(C); Gunnells v. Healthplan Servs., 348 F.3d 417, 426 (4th Cir. 2003); Vizcaino v. United States Dist. Court, 173 F.3d 713, 721 (9th Cir. 1999). 31. Fed. R. Civ. P. 23(c)(5); Payne v. Travenol Labs., Inc., 673 F.2d 798, 812 (5th Cir. 1982).