Page 11 - Ohio Vol 4 No 6

JIM TIMMERBERG | Class Actions
Class Certification is Not a Determination on
Liability
Class action defendants have developed a mantra that, at the certi cation stage, “a trial
court must undertake a rigorous analysis, which may include probing the underlying merits of the plainti ’s claim[.]” Stammco, L.L.C. v United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, syllabus. Defen- dants o en improperly interpret the probing of the underlying merits to mean that, instead of addressing the Rule 23 prerequisites when brief- ing class certi cation, they are free to argue the merits of the plainti s’ individual claims. But the merits are considered at the class-certi cation stage “only for the purpose of deter- mining whether the plainti has sat- is ed the prerequisites of [Rule 23].” Bowen v. Farmers Ins. Co., 8th Dist. No. 105643, 2018-Ohio-1638, ¶ 44. Establishing the defendant’s liability is not one of the Rule 23 prerequisites. erefore, plainti s should not fall into the trap of permitting a motion for class certi cation to be rede ned as a defense motion for summary
judgment.
“Rule 23 allows certi cation of
classes that are fated to lose as well as classes that are sure to win.” (Em- phasis added.) Schleicher v. Wendt, 618 F.3d 679, 686 (7th Cir.2010). So, the focus of a Rule 23 motion is not whether the named plainti s will pre- vail on their individual claims, but whether the named plainti s should be permitted to bring their claims on behalf of other similarly situated in- dividuals. Rule 23 does not require a showing that the plainti will prevail on the merits. See Magpayo v. Advo- cate Health and Hospitals Corp., No. 16-cv-01176, 2018 WL 950093, *3 (N.D. Ill. Feb. 20, 2018) (“this Court
may not decline to certify a class simply because it believes the class’s claims will fail on the merits”); Ma- karon v. Enagic USA, Inc., 324 F.R.D. 228, 231 (C.D. Cal. 2018) (the court “will not conduct a ‘mini-trial’ or determine at [the class-certi cation] stage whether Plainti s could actually prevail”). When a defendant argues that the claim of the named plainti s and all the class members will fail on the merits for the exact same reason, the defendant’s argument supports class certi cation. because such argu- ments suggest that the named plainti and the class members are identically situated.
Defendants, when improperly sug- gesting that the trial court should address the merits of the named plainti s’ claims in deciding class cer- ti cation, o en cite Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). But the Dukes court never addressed the merits of the individual plainti s’ claims. In Dukes, the plainti s sought to certify a class of 1.5 million cur- rent and former female employees of Wal-Mart. e plainti s alleged discrimination in pay and promotion matters, which were committed to lo- cal managers’ discretion. Id. at *342- 343. In that context, the Dukes court observed that rigorous analysis of the Rule 23 prerequisites will frequently “entail some overlap with the merits of the plainti ’s underlying claim.” Id. at 351. Signi cantly, the Dukes court limited its rigorous analysis to the Rule 23 prerequisites.
e Dukes court “probed the mer- its” by examining whether the plain- ti s could show a company-wide poli- cy of discrimination that would satisfy Rule 23’s commonality requirement. e plainti s attempted to establish the existence of such a policy through
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expert testimony, including testimony that there were signi cant disparities between men and women at Wal- Mart that could only be explained by gender discrimination. Id. at 356. e Supreme Court, without addressing whether any of the class members had been illegally discriminated against, observed that merely showing dispar- ities at the regional and national level did not establish the existence of dis- parities at individual stores or raise an inference of a company-wide policy of discrimination. Id. e court held: “Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.” Id. at 359. So, the “merits” determination in Dukes related solely to determining whether the plainti could establish Rule 23 commonality. e Dukes court never addressed the issue of Wal-Mart’s li- ability for the individual claims of any of the putative class members.
Class certi cation addresses wheth- er a single individual can represent a larger group of plainti s. Unlike sum- mary judgment, class certi cation does not resolve which side will win. erefore, a class may be certi ed even if the class will lose on summary judgment. No matter how many cases the defendant cites for the proposi- tion that the trial court must “probe the merits,” such probing is limited to the Rule 23 prereq-
uisites. And, prov-
ing that the named
plainti s will pre-
vail on the issue of
liability is not one
of those Rule 23
prerequisites.
Jim Timmerberg represents plaintiffs in class action suits and complex commercial litigation matters. In addi- tion to earning his Juris Doctor from Case Western Reserve University. Jim holds a master’s degree in European history.
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