Limits of Class Representation Prior to Class Counsel Appointment

Best Practices for Plaintiffs and Defendants to Navigate Unsettled Questions Under CAFA and Duties Owed to Absent Class Members

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

Conducted on Tuesday, December 18, 2012

Recorded event now available

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Program Materials

This CLE webinar will provide class counsel with a guide to the issues of the limits of the representation of potential class members by a named plaintiff under the Class Action Fairness Act (CAFA). The panel will also discuss the impact of court decisions on the issue for prospective plaintiff and defense counsel.


CAFA ensures that class actions are filed in federal court, with a few designated exceptions, which often avoids pro-plaintiff state courts. Courts are facing unresolved questions under CAFA regarding the limits to plaintiff counsel's ability to represent absent class members.

What decisions can a named plaintiff and counsel make prior to class certification and the appointment of counsel to the class? Last year in Smith v. Bayer, the Supreme Court ruled that merely proposing a class does not bind persons who were not parties.

In Standard Fire v. Knowles, the Court is considering the impact on absent class members when a named plaintiff seeks damages less than the $5 million CAFA threshold. This issue presents important considerations for plaintiff attorneys and opportunities for defense counsel seeking to defeat class status.

Listen as our panel of class action attorneys examines how courts are approaching the issue of what duties are owed by a plaintiff's attorney to absent class members in a putative class action and further examines what due process requires in class context.



  1. Introduction
    1. Representation under Rule 23
    2. CAFA jurisdictional requirements
    3. The issue posed by Knowles
    4. The issue beyond CAFA
  2. Plaintiff’s Perspective
    1. Adequacy of representation
    2. Due process
    3. Best practices
  3. Defense Perspective
    1. Adequacy of representation
    2. Due process
    3. Best practices


The panel will review these and other key questions:

  • What pre-certification actions by named plaintiff and counsel affecting absent class members present due process arguments for defense or arguments that certification should not be granted because of inadequate representation?
  • What are the situations that courts have examined concerning how much class counsel can do before they are appointed counsel for the class?
  • How is the decision in Standard Fire Insurance Co.v. Knowles expected to have ramifications beyond CAFA?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Deborah H. Renner
Deborah H. Renner

Baker & Hostetler

Ms. Renner's practice focuses on complex commercial litigation, including the defense of consumer fraud and...  |  Read More

Carl E. Goldfarb
Carl E. Goldfarb

Boies Schiller & Flexner

His practice focuses on complex commercial litigation, often involving antitrust, intellectual property, or unfair...  |  Read More

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