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Challenging Class Certification: 5 Potential Strategies

By Andrew Lu on December 13, 2012 | Last updated on March 21, 2019

Class action lawsuits may the bane of existence for all in-house attorneys. That's why knowing how to challenge class certifications is so critical.

These lawsuits typically seek millions of dollars, involve hundreds of plaintiffs, and have the potential to disrupt your business for years.

But while class actions can bring together many plaintiffs, defendants also have several tools available to challenge the class both in the Federal Rules of Civil Procedure (and its state equivalents) as well as the U.S. Constitution, reports Inside Counsel. Here are five potential strategies to challenge a class:

  1. Questions of law or fact aren't common to the class. This is probably the most popular method of class-busting. When you have hundreds or thousands of class members, it can be quite difficult to prove that all of the class members are bringing the same claim or have an issue with the same set of facts. Attack a particular subset of the class and argue why they should be distinguished. Then repeat for the other subsets within the class.

  2. Class representatives are not representative. In general, not every class member has a say or is even named in a class action. As a result, class members are relying on the named plaintiffs to represent their claims. If the representative doesn't represent the same claims or doesn't have the ability to adequately speak for other class members, the class may be broken up.

  3. Constitutional due process grounds. Plaintiffs' lawyers often seek to bring nationwide or multi-state class actions under the law of a single state, writes Inside Counsel. However, such class actions may violate due process, as states cannot always apply their laws to the claims of non-residents.

  4. Right to raise individualized defenses. In civil cases, defendants are generally allowed to raise individualized defenses. However, this right to bring individualized defenses in class actions has not always been allowed. Defendants can challenge their inability to raise unique defenses as a violation of their due process rights.

  5. Lack of standing. In federal cases, plaintiffs generally must have been injured in a real way to bring a claim, writes Inside Counsel. But for a class action, it's an open issue as to whether the named plaintiffs must have suffered a real injury or claim. So you may be able challenge a class certification for lack of standing.

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