Arguing Class Actions: Returning to the Plain Meaning of 'Predominance'
Arguing Class Actions is a monthly column for the National Law Journal written by DiCello Levitt's Adam J. Levitt.
May 06, 2024 at 06:00 AM
7 minute read
Class ActionsOften in the law, much hinges on the choice of a particular word. This is true of a contract, a statute, and it is no less true of the Federal Rules of Civil Procedure. There is one word in the Federal Rules, however, that has increasingly been interpreted contrary to its plain meaning. That word is "predominate," in Federal Rule of Civil Procedure 23(b)(3). Rule 23(b)(3) says that a case may proceed as a class action when "questions of law or fact common to class members predominate over any questions affecting only individual members." The choice of the word "predominate" unambiguously conveys the intent that cases be certified as class actions, even when there are a number of individual issues, as long as those individual issues are outweighed by common issues; that is, a finding that common issues "predominate" over individual issues. Yet, in class actions seeking Rule 23(b)(3) class certification, litigation often turns into a fight to prove that all issues are common across the class—thus erroneously conflating predominance with perfection, which is not what the rule contemplates or requires.
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