Defeating Class Actions Post-Certification: Procedural and Substantive Strategies

Description

Class action cases have the potential for high damages and defense costs. While defense counsel strive to dispose of class actions early to minimize liability exposure and control expenses, that is not always possible; and a strategy for defeating class certification after an initial adverse certification decision may be necessary.

Depending on the jurisdiction, post-certification challenges include seeking Rule 23(f) appellate review of the class certification ruling or pursuing motions for decertification, reconsideration, or summary judgment. The most effective approach will vary considerably according to the particular case, and state and federal courts may differ significantly in the stage at which the initial certification decision is made and, accordingly, their inclination to recognize post-certification arguments.

Our panel will present decertification efforts that occurred during and immediately after a trial. Ultimately, counsel must carefully consider the potential impact on settlement options of these arguments.

Listen as our authoritative panel examines strategies defense counsel may pursue following certification to defeat the class. FLSA collective actions are in some ways similar to Rule 23 class actions, and our panel will also offer insights related to decertification of FLSA collective actions. The panel will discuss the pros and cons of each type of post-certification challenge and factors to consider according to several different types of scenarios.