• September 13, 2011

In the BioE case, a multi-million dollar shareholder dispute that is pending before Hennepin County Judge Lloyd Zimmerman that Minnesota Litigator has covered previously, defendants fought class certification arguing, in part, that the proposed plaintiffs’ class includes many individuals whose claims were subject to arbitration agreements.  As such, defendants argued, a class action was inappropriate because, among other things, there wasn’t “numerosity” (that is, a big enough number of plaintiffs) to support class action resolution. 

But defendants, Judge Zimmerman held (at page 7), have already been using the “litigation machinery.”  Consequently, they cannot invoke the arbitration clauses to combat numerosity; they waived that procedural defense by litigating for months in state court.  There is, therefore, the required numerosity and all other prerequisites for a class action, the court held. 

Another win in the BioE case for the plaintiffs.

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