Rule 23 Certification: Obtaining or Defeating Class Status

Analyzing the Circuit Courts' Differing Standards

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

Conducted on Thursday, December 10, 2009

Recorded event now available

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Program Materials

This CLE seminar will examine the Circuit Courts’ various standards of review for Rule 23 class certification and the impact on future cases. The panel will offer strategies for obtaining and defeating class certification.


Decisions issued by the First, Second, Third, Fifth and Ninth Circuits over the past few years address the standard of review courts apply to class certification motions. As of April 2009, six of the 12 circuits have applied the "rigorous" analysis standard in their class certification rulings.

The extent to which courts may inquire into the merits of the case during the certification hearing significantly impacts whether a case will progress as a class action. Until recently, however, there has been very little guidance on how much evidence courts can consider at this stage of the case.

Listen as our panel of class action attorneys—plaintiff and defense side—explains the Circuit Courts’ standards of review for class certification under Rule 23 and offers their insights on best practices for obtaining and defeating class certification.



  1. Recent court decisions’ treatment of Rule 23 analysis and their implications
    1. In re Hydrogen Peroxide Antitrust Litigation (3d Cir. Dec. 30, 2008)
    2. In re Initial Public Offering Securities Litigation (2d Cir. 2006)
    3. Regents of the University of California v. Credit Suisse First Boston, Inc. (5th Cir. 2007)
    4. Oscar Private Equity Investments v. Allegiance Telecom, Inc. (5th Cir. 2007)
    5. Dukes v. Wal-Mart Stores Inc. (9th Cir. 2007)
    6. In re New Motor Vehicles Canadian Expert Antitrust Litigation (1st Cir. 2008)
  2. Obtaining class certification
    1. Bifurcation of liability and damages
    2. Using experts to establish appropriateness of the class
    3. Using statistical evidence to support certification
    4. Hybrid certification under 23(b)(2) and 23(b)(3)
  3. Challenging class certification
    1. Exploring plaintiffs’ evidentiary burden under Rule 23
    2. Drawing attention to the named plaintiffs’ experiences and to defenses/rebuttal proof
    3. Using and challenging expert submissions at the class certification stage
    4. Addressing bifurcation and other proposals designed to simplify class proceedings


The panel will review these and other key questions:

  • How are the federal circuit courts currently responding to class certification motions?
  • What strategies have been effective for plaintiffs' counsel seeking class certification?
  • What practices should defense counsel use to effectively defeat certification?


Boyle, Brian
Brian Boyle

O'Melveny & Myers

He focuses on consumer class actions, representing corporations in the insurance, healthcare, financial services and...  |  Read More

Thomas L. Allen
Thomas L. Allen

Reed Smith

He has over 25 years experience defending clients in complex litigation, including defending more than 75 class actions...  |  Read More

Steve W. Berman
Steve W. Berman

Managing Partner
Hagens Berman Sobol Shapiro

He has served as lead or co-lead plaintiffs' counsel in class actions and complex litigations throughout the country,...  |  Read More

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