At its core, the modern class action device was created to both increase efficiency and allow greater access to justice, while, at the same time, binding absent class members to promote finality. Class actions benefit plaintiffs by allowing them to share the burden and often enormous expenses of litigating complex cases against corporate defendants accused of widespread misconduct. Correspondingly, class actions benefit defendants by increasing efficiency, allowing them to litigate cases in a single forum against a small group of representative plaintiffs, while also providing the ability to resolve nearly all individual claims by binding absent class members. And it benefits the public by enhancing judicial economy and providing a mechanism for a “private attorney general” to deter widescale corporate misconduct where one may not otherwise exist.

The pivotal moment in class litigation is the class certification motion practice. It is at that stage of the litigation that the judge must determine whether the proposed class satisfies Rule 23 of the Federal Rules of Civil Procedure such that it can proceed as a class. This procedural overlay, however, has been increasingly transformed by the defense bar into a costly war of attrition, as an alternative means to escape liability for wrongful conduct without having to defend the merits. In doing so, corporate defendants have advocated for more stringent standards to govern class certification, arguing that certification forces them into a Hobson’s choice of either settling frivolous claims or rolling the dice in a jury trial and risking financial ruin. But this faulty premise is built entirely on the notion that class actions always assert frivolous claims, when history is replete with cases of confirmed corporate misconduct where an arm’s-length settlement is reached in exchange for the release of nearly all individual claims. And, in those potential cases where class action lawsuits are truly frivolous, defendants can benefit from class certification by binding an adverse summary judgment ruling on absent class members.