Rule 23(b)(3) requires that common questions predominate over individual ones. Challenges target individualized consent, reliance, injury, causation, and damages that would require member-by-member adjudication.
Predominance is more demanding than commonality.
Alternative Names:
Predominance Objection|Rule 23(b)(3) Predominance Challenge
Why it Matters?
Predominance is the most productive certification defense because it does not require showing that no common questions exist, only that individual ones would dominate the trial, which is provable through a trial plan analysis demonstrating what proof each member would require. Consent in TCPA cases and reliance in UDAP cases are the recurring individualized issues. Presenting an affirmative trial plan showing the individualized inquiry is more persuasive than argument.
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Frequently asked questions
Why is predominance the most productive challenge?
What presentation is most persuasive?
