Overview of Certification Activity

actions that can be maintained and procedures relating to class certification, among other things.

10

Thus, California certification standards and procedures have evolved to include substantial parallels to those of the federal jurisdiction, with the exception of the option for interlocutory appeal of the certification decision that is available in the federal court. After a class has been certified for purposes of litigation in California, the decision can be challenged through a motion for decertification or a petition for a writ of mandate during the course of litigation or by appeal of the certification decision upon final judgment. Unlike rule 23(f) of the Federal Rules of Civil Procedure, however, California law does not provide for an interlocutory appeal of the certification decision after the court grants class certification. Both jurisdictions do allow for appeal of the denial of class certification if that ruling would be the ―death knell‖ of the action.11

The following analyses provide an overview of California class action data as they relate to class certification and this important phase of class action litigation.

Overview of Certification Activity

Class certification occurs in only a small percentage of the cases that are originally filed as class actions in California state court. Table 1 shows that less than a quarter of disposed cases in the study sample were certified, either through a litigated motion for certification or as part of a classwide settlement agreement. This rate is comparable to the certification rate of 20% in federal court, as reported in a 2006 study published by the Federal Judicial Center.12

Certification activity

Not certified after filing of a motion for certification13 Certified No certification activity Total Table 1. Certification activity in disposed cases14

n Percent

63 5% 289 22% 942 73% 1,294 100%

10 See Fed. Rules Civ. Proc., rule 23(a)–(h). 11 See Eisen v.Carlisle & Jacquelin, (1974) 417 U.S. 156 at p.162. 12 ―In both federal and state courts, cases were almost equally unlikely to be certified as class actions.‖ Thomas E. Willging & Shannan R. Wheatman, ―Attorney Choice of Forum in Class Action Litigation: What Difference Does It Make?‖ (2006) 81 Notre Dame Law Review 635. 13 For purposes of this report, ―Not certified after filing of a motion for certification‖, ―not certified after motion‖ or ―no certification after motion‖ refers to a case that had a motion for certification that was either denied by the court or was never ruled on prior to disposition and was not certified later as part of a settlement. 14 Overview analysis is confined to disposed cases only, as open cases may show certification activity after completion of case file review.