How to Avoid Rule 23 'Commonality' in Class Action Employment Litigation

In many class action cases, plaintiffs seek to certify a class encompassing thousands of employees across multiple facilities and job titles. Fortunately for employers, before such a broad class can be certified, Rule 23 of the Federal Rules of Civil Procedure requires plaintiffs to establish, among other things, that there are common questions of law or fact among the proposed class members (the "commonality test"). This article assesses whether and to what extent employers can defeat class certification based upon the existence of a decentralized, subjective decision-making. After surveying the pertinent case-law in the Second, Third, Sixth, Seventh and Ninth Circuits over the past 10 years, we offer practical guidelines that employers may use to avoid the certification of broad classes.

14 minute read February 28, 2006 at 07:27 AM

By

Thomas M. Beck And Nicholas J. Sanservino, JR.