Disposition by Means of Certification

Disposition by Means of Certification

One possible way to evaluate the theories of pressure to settle created by class certification is to once again look at the disposition data broken down by certification category, as in table 16. This analysis allows for comparison of settlement rates across the categories and examination of the percentage of certified cases that end in settlement according to each means of certification.

Certified as part of settlement Certified through litigated motion

Not certified after motion

No certification activity

Settlement Dismissed with prejudice Summary judgment for defendant 99% 69% 36% 26%

<1% 10% 30% 37%

- 10% 23% 6%

Dismissed without prejudice <1% 8% 9% 29% Verdict for defendant - 2% - 1% Verdict for plaintiff - 2% 2% <1% Total 100% 100% 100% 100% Table 16. Disposition composition comparison, by certification category69

Given the absence of an interlocutory appeal option in California, one may conclude that settlement pressure would exert more effect and more cases would be compelled to settle after the granting of a motion for class certification as compared to federal court.70 However, the disposition composition for certified cases that reached a final outcome in California does not support this hypothesis. Table 16 shows that the rate of settlement after certification through a court-granted motion for certification is 69%. This is actually slightly lower than the rate of 72% in the federal court. California‘s lack of intermediate recourse in response to the granting of class certification does not result in a higher rate of settlement in that situation when compared to data from federal court. The California and federal rates of actual settlement after the class was certified for settlement were similar at 99% and 95%, respectively.

Though the overall settlement rate is lower than that found in federal court, the disposition rates for each type of certification status presented in table 16 show that settlement is the most frequent disposition in cases having a class that is certified through a litigated motion in

69 Calculation of these rates includes final disposition only. Interim dispositions have been removed from this analysis, as have cases that certified both through litigated motion and, later, for purposes of settlement. See appen. D, table D.2 for full data. 70 See Prado-Steiman v. Bush (11th Cir. 2000) 221 F.3d 1266, 1274, explicitly sanctioning the use of the interlocutory appeal option set forth in rule 23(f) in situations where the certification decision may create settlement pressure.