Class Certification Standards

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At a recent meeting, the Advisory Committee on Civil Rules of the Judicial Conference of the United States discussed, at an early stage, potential amendments to the federal class action rule, as well as a potential rule requiring disclosure of third-party litigation funding. No specific proposed amendments are before the committee at this stage (see…

A recent Ninth Circuit decision reconciled other decisions within that circuit involving auto insurance total losses, concluding that individual questions predominated and therefore affirming the district court’s denial of class certification. The dissent, however, called for en banc review, suggesting that an intra-circuit split exists.

In Ambrosio v. Progressive Preferred Insurance Company, – F.

The Supreme Court’s recent decision in Trump v. CASA, Inc., –– S. Ct. ––, 2025 WL 1773631 (U.S. June 27, 2025), restricting the use of “universal injunctions” by federal district courts, is receiving extensive attention regarding how it may affect the litigation challenging various executive orders and actions of President Trump. From the perspective…

On Friday, the U.S. Supreme Court granted certiorari in Laboratory Corporation of America Holdings v. Davis, No. 24-304, to decide “[w]hether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.” This has the potential…

Plaintiffs sometimes seek to certify an “issues class” under Federal Rule of Civil Procedure 23(c)(4) (or an equivalent state court rule) if they anticipate difficulty certifying the entire case for class treatment, but certain issues maybe more likely to qualify for class treatment. The federal rule provides that “[w]hen appropriate, an action may be brought…

A recent Texas Supreme Court decision in a class action caught my eye because it addressed several significant class certification issues, including one that I’ve seen regularly and another that the court analyzed in a new and different way. First, the court held that a named plaintiff does not have standing to seek injunctive relief…

When class certification is denied because the named plaintiff’s claim fails for some reason, sometimes an absent class member will try to intervene rather than filing their own separate suit. Their goal is usually to attempt to certify a class for a longer time period than would otherwise be possible.  If the new plaintiff files…

In analyzing class certification issues, courts have said that common issues may predominate in some cases even though damages would have to be determined individually for each class member. But what about where some class members have no damages? Recent federal appellate decisions have said that situation presents an issue of liability, not damages.

Federal courts of appeals have disagreed on whether a named plaintiff in a proposed class action can sue defendants who have not injured that plaintiff but allegedly have injured putative class members.  This is not an uncommon scenario. Plaintiffs often attempt to bring putative class actions that are broader than their own claims, suing defendants…

A recent Ninth Circuit decision illustrates how defendants can use evidence on an individualized defense to potentially defeat class certification.

In Van v. LLR, Inc., — F.4th –, 2023 WL 2469909 (9th Cir. Mar. 13, 2023), the defendant allegedly charged sales tax that was not owed by Alaska purchasers on online purchases. While the…