Consumer Class Actions: What Your Business Must Know before Trial

To certify a class under Rule 23, the plaintiff must satisfy all four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation, and must also satisfy Rule 23(b)(3), which requires that common questions predominate over individual ones and that a class action is superior to other available methods. The Supreme Court's decision in Wal-Mart v. Dukes held that the plaintiff must identify a common contention whose truth or falsity is capable of classwide resolution, and defendants can exploit this standard by demonstrating that resolving each class member's claim requires examining that class member's individual circumstances or reliance on the alleged misrepresentation.

Class action litigation and consumer protection law counsel can advise on the Rule 23(a) requirements applicable to the proposed class and develop the class certification opposition and expert strategy.

Ascertainability is a judicially created requirement that many federal circuits recognize as a threshold requirement for class certification, and it requires that the class be defined in terms of objective criteria so that membership can be determined without a mini-trial on each proposed member's individual circumstances. Defendants can challenge ascertainability by demonstrating that identifying class members requires reviewing records that cannot be compiled without individualized inquiry or that the plaintiff's proposed methodology relies on self-identification that is not verifiable.

Class action litigation and commercial litigation counsel can advise on the certification requirement most vulnerable to challenge in the specific case and develop the targeted certification opposition strategy.

Class actions and multi-district litigation and appellate litigation counsel can advise on the ascertainability defense available in the specific case, assess whether an interlocutory appeal is warranted, and develop the ascertainability challenge and decertification strategy.

The named plaintiff is the representative party who prosecutes the class action on behalf of absent class members, and Rule 23(a)(4) requires that the named plaintiff will fairly and adequately protect the interests of the class, which courts interpret to mean both that the named plaintiff has a sufficient interest in the outcome and that the named plaintiff's claims are not subject to unique defenses that would dominate the trial. Courts also evaluate the adequacy of class counsel under Rule 23(g), which requires the court to consider class counsel's experience, knowledge of the applicable law, and the resources they are willing to commit.

Class action litigation and civil litigation evidence counsel can advise on the named plaintiff's adequacy and develop the named plaintiff attack and adequacy opposition strategy.

Defendants can challenge the adequacy of the named plaintiff by demonstrating that the named plaintiff has a financial interest that conflicts with the interests of absent class members, that the named plaintiff has a relationship with class counsel that compromises the independence of the representation, or that the named plaintiff has engaged in conduct that makes them vulnerable to personal attacks. Defendants can also challenge typicality by demonstrating that the named plaintiff purchased a different product, in a different market, or relying on different representations than the typical class member.

Class actions and multi-district litigation and appellate litigation counsel can advise on the adequacy and typicality challenges most effective in the specific case and develop the adequacy opposition strategy.

The superiority requirement of Rule 23(b)(3) requires the plaintiff to demonstrate that a class action is superior to other available methods for adjudicating the controversy, and courts evaluate superiority by examining the interest of class members in individually controlling their own litigation and the likely difficulties in managing a class action. Defendants can challenge superiority by demonstrating that individual class members have strong interests in controlling their own litigation or that the manageability problems of trying the class's individualized damages claims would overwhelm any efficiency gains.

Class action litigation and consumer protection disputes counsel can advise on the superiority challenge and develop the superiority opposition and decertification strategy.

CAFA grants federal district courts original jurisdiction over class actions in which the aggregate amount in controversy exceeds five million dollars, any member of the proposed class is a citizen of a state different from any defendant, and the proposed class has at least one hundred members, and a defendant who meets these requirements may remove the action to federal court within 30 days of service. CAFA removal is a powerful strategic tool because federal courts are significantly more likely to deny class certification than state courts in plaintiff-friendly jurisdictions.

Class action fairness act and federal court trial counsel can advise on whether the specific consumer class action satisfies the CAFA requirements, assess the strength of a CAFA removal and the risk of remand, and develop the removal strategy.

When a class is certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, which typically includes individual notice to all class members who can be identified through reasonable effort and publication notice to reach class members who cannot be individually identified, and the notice must describe in plain language the nature of the action, the class claims, and the class member's right to opt out and pursue their claims individually. The opt-out process must provide class members with a reasonable period to exclude themselves from the class.

Class actions and multi-district litigation and injunctive relief class actions counsel can advise on the class notice and opt-out requirements and develop the notice and opt-out administration strategy.

A class action settlement must be approved by the court as fair, reasonable, and adequate, and the court evaluates the proposed settlement by examining the strength of the plaintiff's case, the risk and expense of further litigation, the extent of discovery completed, the experience and views of class counsel, and the reasonableness of the attorneys' fees requested. Defendants should structure the settlement to minimize the risk of successful objection by ensuring that the settlement relief is significant relative to the damages at trial.

Class actions and multi-district litigation and appellate litigation counsel can advise on the class action settlement approval requirements, assess whether the proposed settlement satisfies the applicable fairness standards, and develop the settlement approval and appellate strategy.