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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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, May 18, 2023

Recorded event now available

or call 1-800-926-7926

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 case law. 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 case law 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 Ramirez v. TransUnion L.L.C. and Spokeo v. Robins and consider the avenues available to challenge class certification on Article III grounds and to leverage standing issues in litigating the other requirements of Rule 23.
  • Personal jurisdiction. The Supreme Court in Bristol-Myers Squibb Co. v. Superior Court (BMS) left open the question of 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 and Ramirez v. TransUnion L.L.C.
  • Explore different approaches to absent members and personal jurisdiction


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

Schwartz, Jordan
Jordan M. Schwartz

Skadden Arps Slate Meagher & Flom

Mr. Schwartz represents clients in purported class actions, multidistrict litigation and mass tort proceedings in...  |  Read More

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