Monday, May 25, 2009
Posted by D. Daniel Sokol
ABSTRACT: The Rule 23 analysis is currently undergoing what can only be described as a seismic jurisprudential shift. A series of recent cases and recent amendments to Rule 23 auger a much more difficult road to certification for class representatives. Although it was always clear that class plaintiffs had to convince the trial court that the requirements of Rule 23 were met, there was little guidance on the proper standard of proof.
Eschewing a formulaic rubber-stamping of plaintiffs claims to meeting the Rule 23 requirements, courts now are likely to delve into merits evidence, as necessary, and to apply a preponderance of the evidence test to all of the Rule 23 factors. Only plaintiffs who put forth evidence that "more likely than not" establishes each fact necessary to meet the requirements of Rule 23 will have their class certified. This articulation of the how trial judges should apply Rule 23 and the weight and degree of inquiry into Rule 23 factors seems consistent with the purpose of the class action mechanism: it provides a way in which to adjudicate claims that have a certain degree of sameness and commonality. To the extent those factors are not present, the class action mechanism should not be used.