CERTIFICATION

26(a)(1)Numerosity(2)Commonality(3)Typicality(4)Adequacy

26(b)(3)

*Predominance

•Superior Method

Dukes v. Wal-Mart•Common questions & Common answers•Rigorous analysis; may overlap merits

Pre-Certification Post-Certification

•Sufficiency of proof•Ability to calculate damages•Viability of claims

*Recognizes if not decided pre-certification, not likely decided at all 2

CERTIFICATION

Dukes v. Wal-Mart•Common questions & Common answers•Rigorous analysis; may overlap merits

Butler v. Sears (7th Circuit 2012)•No mention of Dukes; Cites Glazer•Predominance = Efficiency•Defer Injury, causation, damages

Comcast (3rd Circuit) – SCOTUS•"Without resolving whether … evidence … susceptible to awarding damages on a class-wide basis”

Tait v. Bosch (C.D. Cal. 2012)•Misuse Irrelevant to Design Defect Claims•Defendants Offered No Evidence

Extent Daubert applies to class cert.

Extent court must consider merits issues

Extent individual adjudication of damages makes class cert inappropriate.

Glazer v. Whirlpool (6th Circuit 2012)

•Cited Dukes, Accepted Pls.' Proof;•Ignored Defense Evidence

Amgen (9th Circuit) – SCOTUS•Must Plaintiffs prove materiality in order to obtain class certification?

Key Idea: Rigorous analysis cuts both ways; develop substantive record for class certification proceedings

Key Idea: Rigorous analysis cuts both ways; develop substantive record for class certification proceedings 3

Creating claims where none exist• Risk of harm, but defect not yet manifest• Rely on non-forum law (Glazer & Tait)

"Creative" damages theories• Premium price• Benefit of the bargain

Creating confusion about "injury" vs. "damages"

No Injury Class Actions

Hodgepodge of laws

Forum Law4

No Injury Class Actions

• Confusion about "injury" vs. "damage"

"No injury" cert. granted "No injury" cert. denied

Bifurcate: Certify Liability; Defer Damages

Glazer & Butler “justifications”•Sua sponte "premium price" theory.

•Defs should "welcome" possible win . . .

•Address “no injury” at damages phase

Toyota Hybrid Brake Mktg (C.D. Cal. 2012) (same as Tait v. Bosch)

•If, after certification, still need to filter out “no injury" class members, NO commonality or predominance.

•"Merely offering a creative damages theory does not establish the actual injury that is required to prevail on their product liability claims."

*Comcast may clarify these issues. 5

CLASS ARBITRATION

Does arbitration clause cover class action?

Class action waivers

• Stolt-Nielson – Arbitration panel must interpret the contract, not impose policy.

•AT&T Mobility v. Conception – FAA preempts state law attempt to invalidate class waivers

• Sutter v. Oxford Health –"no civil action concerning any dispute arising under this Agreement shall be instituted before any court ..."

• Italian Colors v. AmEx – SCOTUS review holding that waiver not enforceable if forfeits federal rights

• Ferney v. Dell (Mass. Sup. Ct.) – Cannot deprive plaintiffs of meaningful course of action

• Employment agreements get closer scrutiny.

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Take aways:

•Expressly reference class action

•Provide method for resolving dispute.

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