• April 29, 2009

For quite a few years, trial courts’ consideration of whether or not to certify a class of certain kinds of putative class action claims (securites fraud, consumer class actions, certain employment class actions, environmental cases, mass accidents) have been perfunctory, at best.

Many plaintiffs in such cases have intoned the requirements of Rule 23 of the federal rules or the state analog, relying on the allegations in their complaint and, often, courts have taken plaintiffs at their word, more or less, and certified classes without actually weighing (let alone scrutinizing) plaintiffs’ evidence on each required element under Rule 23.

That first changed in Miles v. Merrill Lynch & Co., (In re Initial Pub. Offerings Sec. Litig.), 471 F.3d 24 (2d Cir.2006) when the Second Circuit established that plaintiffs must prove all of the Rule 23 elements by a “preponderance of the evidence.” Now, as of yesterday, trial courts in Minnesota are on board with the Second Circuit and other courts around the country that have followed In re IPO.

This is not a change in the substantive law but the change will force plaintiffs’ counsel to take class certification more seriously. If they rest on their pleadings or try to coast through this preliminary issue in class action cases, they are likely to fail at the critical class certification stage of their cases.

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