The underlying reasons for the decline in motions for certification and large number of abandoned class action claims is unknown, but one possibility is that evolving California and federal case law has narrowed the standards for a class certification so as to constrict the pool of cases that are ever able to satisfy all the requirements for class certification. (See pages 14-17 for discussion of certification by case type.) A second possibility is that attorneys may have included class allegations in the initial complaint, regardless whether the merit of the class claim may likely prove unsupportable during the course of litigation, in an attempt to meet the requirements for assignment into the Complex Civil Litigation Program departments. 27 Yet a third possibility is that the inclusion of class action claims is a tactical decision made to influence the perception of the case in order to leverage greater bargaining power during the course of litigation or settlement. However, these theories cannot be tested using the study database. Means of Certification Another significant finding regarding overall certification rates in class action cases is how few classes are actually certified through a litigated motion versus as part of a classwide settlement agreement. Table 6 shows that, in closed cases with a certified class, almost three times as many certified the class as part of a settlement agreement compared to those certified through a litigated motion for class certification. These data relating to means of certification in California also diverge from that in the federal system. The rate of certification as part of a settlement is lower in federal court at 58%, with a corollary rate of certification through litigated motion that is higher at 42%.28
Certified as part of a settlement Certified through litigated motion Both by litigated motion and later as part of settlement Total certified cases
29
n
Percent
212
73%
65
22%
12
4%
289
100%
Table 6. Means of certification for disposed cases with a certified class In California, the frequency of classes certified as part of a settlement agreement may be another product of the Complex Civil Litigation Program. Close supervision of each case, as well as the 27
In order to qualify for assignment to the Complex Civil Litigation Program department, a party must move for complex case designation and pass scrutiny under rule 3.400 of the California Rules of Court, which sets forth the factors that establish case complexity. Additionally, because even under rule 3.400 standards there can ―still be a significant degree of uncertainty regarding whether a case is truly complex,‖ rule 3.400(c) also lists actions that are provisionally complex—that are conferred an interim presumption of complexity, including ―claims involving class actions.‖ 28 Willging & Wheatman, supra note 12, at pp. 606-607. 29 The certification for settlement in these 12 cases either amended or expanded upon the class that was originally certified in the granted motion for certification.
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