This continues our series of blog posts on effective partnering between inside and outside counsel to defend against class action lawsuits. Here we discuss strategies in class action engagement, focusing on understanding the nature of the claim.
To position the case to take advantage of the defenses mentioned in our previous post, inside and outside counsel must intimately understand how plaintiffs will have to prove their case on the merits and how the company must defend against those claims on the merits. Only with such an assessment can counsel determine whether the claims and defenses can fairly be adjudicated on a common basis with common proof. Even if the company’s strategy is to attack class certification before presenting merits defenses to the court (e.g., by moving for summary judgment), counsel nonetheless must understand the merits thoroughly for purposes of defeating the class claims or opposing class certification.
This is true because to show that that case should be certified under Rule 23(b)(3) as a “common issues” class action, the named representatives will have to demonstrate that, by proving their own individual cases, they will be able to prove substantially everything that the class needs to show to obtain a recovery for each of the absent class members.1 On the core issues driving liability, proof as to one should be proof as to all. So the more the company can show that any single plaintiff must prove her own claim by getting into peculiar facts unique to her peculiar situation, the more problematic it will be for that plaintiff to act as the in-court champion for an untold number of out-of-court class members who the defendants will have no opportunity to investigate, cross-examine, or otherwise confront individually.
Our next post will continue the discussion of strategies in class action engagement.