Chapter § 5.08 The Certification Decision

• Jurisdiction: United States
• Publication year: 2020

§ 5.08 The Certification Decision

Rule 23(c)(1)(A) provides that, “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.”¹⁷⁴ The Manual for Complex Litigation explains that “early practicable time” is when “the court has sufficient information to decide whether the action meets the certification criteria of Rules 23(a) and (b).”¹⁷⁵ The Pocket Guide for Judges¹⁷⁶ further explains that judges “should feel free to ignore local rules calling for specific time limits; such local rules appear to be inconsistent with the federal rules and, as such, obsolete.”¹⁷⁷ Courts, in fact, have discretion to hear and decide motions to dismiss or for summary judgment, even before deciding whether to certify a class.¹⁷⁸ Indeed, the Pocket Guide for Judges advises that the most efficient practice is to rule on such motions before addressing class certification, because ruling on class certification may prove to be superflouus.¹⁷⁹ Only the named parties, however, are bound by dispositive rulings made prior to certification.¹⁸⁰

Courts may need to hold an evidentiary hearing in making the certification decision when a party challenges the factual basis for a class action.¹⁸¹ But, when “there is disagreement over the legal standards but not over the facts material to the certification decision, . . . a hearing may be limited to argument over whether the certification requirements are met.”¹⁸²

Rule 23(c)(1)(B) provides that an order that “certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).”¹⁸³ As a general proposition, the counsel selected must “fairly and adequately represent the interests of the class.”¹⁸⁴ In making the selection, the court must consider (1) the work that the counsel has performed in “identifying or investigating potential claims in the action”;¹⁸⁵ (2) counsel’s experience in handling similar matters,¹⁸⁶ (3) counsel’s “knowledge of the applicable law,”¹⁸⁷ and (4) “the resources that counsel will commit to representing the class.”¹⁸⁸

The Pocket Guide for Judges outlines five approaches the court may employ in selecting class counsel: (1) “the single-lawyer model”—i.e., when “the lawyer who filed the case will be the only logical choice for appointment as class counsel”; (2) “private ordering”—i.e., when in “high-stakes, high-profile class action litigation...