Beyond Predominance: Alternative Arguments Against Class Certification

Leveraging the Latest Court Decisions to Challenge Class Membership and Defeat Certification

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Thursday, March 18, 2021

Recorded event now available

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Course Materials

This CLE course will discuss various avenues for opposing class certification beyond Rule 23(b)(3)’s predominance requirement, including arguments related to ascertainability, typicality/adequacy, standing, and personal jurisdiction.


Class certification proceedings often focus on whether common issues predominate over individual issues. Recent decisions, however, highlight the importance of raising arguments beyond those afforded by Rule 23(b)(3) – including arguments arising from other subsections of Rule 23 and those originating in the caselaw. Join our panel as they discuss recent developments concerning several such avenues for defending against certification, including:

  • Ascertainability. Ascertainability demands that class action plaintiffs present a mechanism for identifying prospective class members before the class is certified. Panelists will explain the federal circuit split on ascertainability issues, discuss recent decisions denying class certification on this ground, and provide insight regarding which arguments seem to be well received in different jurisdictions.
  • Typicality and adequacy. Rule 23(a)’s typicality and adequacy requirements prevent certification if the claims of the named plaintiff(s) are subject to unique defenses not applicable to the class as a whole. Panelists will discuss recent caselaw in which class action defendants have used these requirements to their advantage and provide litigation strategies for setting up such arguments on class certification.
  • Article III standing. Our panel will discuss the different approaches to applying Spokeo v. Robins and consider the avenues available to challenge class certification on Article III grounds. It also will discuss the Supreme Court’s recent grant of certiorari in Ramirez v. TransUnion LLC to revisit Article III standing in class actions and the potential implications of that case.
  • Personal jurisdiction. The Supreme Court in Bristol-Myers Squibb Co. v. Superior Court (BMS) left open the question whether absent class members must establish personal jurisdiction in class actions. The panel will discuss the different approaches being used to fill that gap, recent developments, and the potential effect of BMS on class litigation.

Listen as our authoritative panel discusses recent developments in applying the ascertainability requirement and the likely impact of the latest case law trends for counsel opposing certification.



  1. Ascertainability
  2. Typicality and adequacy
  3. Article III standing
  4. Personal jurisdiction


The panel will review these and other key topics:

  • The federal circuit split on the ascertainability requirement
  • Litigation strategies for challenging typicality and adequacy
  • Different approaches to applying Spokeo v. Robins
  • Supreme Court’s recent grant of certiorari in Ramirez v. TransUnion LLC
  • Explore different approaches to absent members and personal jurisdiction


Wyatt, Geoffrey
Geoffrey M. Wyatt

Skadden Arps Slate Meagher & Flom

Mr. Wyatt represents clients in mass tort and other aggregate litigation. He defends companies as part of a team that...  |  Read More

Kouba, David
David Kouba

Arnold & Porter Kaye Scholer

Mr. Kouba’s practice focuses on class action litigation and other complex commercial matters, and he has defended...  |  Read More

Rose, Nina
Nina R. Rose

Skadden Arps Slate Meagher & Flom

Ms. Rose has extensive experience defending consumer fraud and false advertising class actions and product liability...  |  Read More

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