Historically, plaintiffs seeking monetary damages and wishing to pursue their case as a class action have sought certification under Federal Rule of Civil Procedure 23(b)(3), but this has become increasingly difficult. In recent years, there has therefore been a rise in the invocation of Rule 23(c)(4) at the class certification stage, often as an alternative argument (if the court finds that plaintiffs have not met their burden under Rule 23(b)(3)), but even occasionally as a standalone request.
The newfound focus on Rule 23(c)(4) at the class certification stage has permitted plaintiffs to present their liability theories earlier in the case, and has also permitted certification in certain cases that otherwise may never have been certified due to highly individualized elements of the cause of action, such as injury, reliance, and causation. And once a class action is certified by a district court, the defendant may have greater exposure than if the class members were compelled to pursue their purported claims individually.
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