Source - Developments in Class Action Law

Class Action Decisions Published January 2024

Highlights from this issue include:

Ascertainability. The Fourth Circuit reiterated that it imposes an implicit “ascertainability” requirement pursuant to which a class cannot be certified unless a court can readily identify the class members in reference to objective criteria. Practitioners must be sure to verify whether their circuit imposes an ascertainability requirement and, if so, what is required to satisfy that requirement.

Each Claim Must be Analyzed. The Ninth Circuit reversed a denial of class certification when the district court only analyzed one of claims in the case. Practitioners must be sure to address all claims they want certified and that the district court rules on each claim.

Intervention to be a Class Representative. In a case involving an unusual but interesting procedural history, the Sixth Circuit held the ability to pursue a claim as a class action is not a substantial interest sufficient to justify an absent class member to intervene in a pending action after that action’s motion for class certification had been denied. This type of complicated procedural history is unusual, but practitioners should make sure when multiple cases involve the same alleged facts that the plaintiff in a specific case has the ability to pursue the claims on a classwide basis.

Use of Written Policies in Wage and Hour Disputes. The Ninth Circuit also addressed the issue of when to certify wage and hour claims when a company’s written policy is at issue. Practitioners should take note that even when a written policy is involved, plaintiffs should introduce evidence to show the policy is routinely and consistently applied and defendants should introduce evidence the policy is applied sporadically and in different ways by different people at different locations. The Ninth Circuit opinion emphasized both sides of this: it certified a class where the policy was consistently enforced and refused to certify the other class because it would have to undertake individual inquiries into which stores and managers enforced the policy, what days the policy was enforced, which employees were subject to the policy, and so on.

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