Thursday, May 21, 2009
Class Action Standards in Crisis: Whether Common Merits Questions Predominate Does Not Depend on the Questions’ Answers
Posted by D. Daniel Sokol
J. Douglas Richards (Cohen Milstein Hausfeld & Toll) argues Class Action Standards in Crisis: Whether Common Merits Questions Predominate Does Not Depend on the Questions’ Answers.
ABSTRACT: In recent class action case law, the United States Courts of Appeals for the First, Second, and Third Circuits have modified governing legal standards that had been established law for decades, explicitly overruling some precedents and arguably adopting a new paradigm for class action certification. Unfortunately, however, recent opinions have engendered widespread confusion and disagreement concerning how the new approach properly functions in the context of the most commonly disputed element of class certification analysis, which is the predominance of “common questions of law or fact” over “questions affecting only individual members” of the class, under Rule 23(b)(3) of the Federal Rules of Civil Procedure.