Circumventing Class Action Predominance Through Improper Merits Discovery

9/12/2012 | Article

By Steven P. Benenson and John T. Chester

To achieve certification in putative class actions filed under Federal Rule of Civil Procedure 23(b)(3) and similar state court rules, plaintiffs must proffer, among other prerequisites, class-wide proof of the common legal and factual issue or issues that will predominate at trial. Often, however, plaintiffs do not have this class-wide proof. A growing and disturbing trend among plaintiffs’ attorneys has emerged. They seek merits discovery—particularly regarding damages—for each potential class member, present this information in summary form, and then argue that it qualifies as class-wide proof for class-certification purposes.

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