Defeating Rule 23(b)(3)'s Predominance Requirement Using Defenses and Counterclaims

Evaluating Effectiveness of Strategy in Light of Differing Lower Court Approaches and Developing Case Law

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

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Conducted on Tuesday, August 25, 2015

Recorded event now available

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Course Materials

This CLE course will examine class action defense counsel’s strategic use of defenses and counterclaims to defeat Rule 23(b)(3)’s predominance requirement for class certification. 


The Supreme Court in Wal-Mart v. Dukes—in a portion of the opinion that was unanimous—held that a class cannot be certified on the assumption that defendants will not be entitled to assert individualized defenses. That decision has reinvigorated interest in affirmative defenses and counterclaims as a means to defeat certification.

Even after Wal-Mart, however, the case law on this issue remains unsettled, with different courts applying different standards for when defenses or counterclaims against absent class members preclude class certification.

Listen as our authoritative panel discusses the tension among the lower courts on the use and effectiveness of this strategy and outlines techniques for prevailing using this strategy in light of developing case law. The panel will also discuss some of the types of defenses and counterclaims that both plaintiff and defense counsel may encounter in this important and evolving area. 



  1. Recent trends in the use of defenses and counterclaims to defeat certification
  2. Review of relevant court decisions
  3. Best practices for using this strategy


The panel will review these and other key questions:

  • How are courts responding to defense counsel’s attempts to use affirmative defenses and counterclaims as a strategy to defeat certification?
  • What types of defenses and counterclaims are class action attorneys using under this approach?
  • What are some best practices for defense counsel seeking to use this strategy to defeat the predominance requirement for certification?


Derek T. Ho
Derek T. Ho

Kellogg Hansen Todd Figel & Frederick

Mr. Ho specializes in appellate litigation and complex commercial litigation. He  has served as lead...  |  Read More

Farah Lisa Whitley-Sebti, Esq.
Farah Lisa Whitley-Sebti, Esq.

Alston & Bird

Ms. Whitley-Sebti is a member of the firm’s Financial Services Litigation team. She has experience...  |  Read More

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