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.

Continue reading the full GT Advisory.

Reproduced with permission. Published June 2020. Copyright © 2020 The Bureau of National Affairs, Inc. 800.372.1033. For further use, please visit: http://bna.com/copyright-permission-request/

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Photo of Sylvia E. Simson Sylvia E. Simson

Sylvia Simson is a litigator with a diverse practice focused on a broad range of complex commercial litigation as well as mass torts, product liability, life sciences, environmental, and financial services matters.

Ms. Simson has litigated matters concerning a variety of issues, including

Sylvia Simson is a litigator with a diverse practice focused on a broad range of complex commercial litigation as well as mass torts, product liability, life sciences, environmental, and financial services matters.

Ms. Simson has litigated matters concerning a variety of issues, including complex contractual disputes, alleged fraud and/or conspiracy claims, purported toxic exposure claims (involving various forms of chemicals or dust as well as asbestos), failure to warn allegations, business torts, bankruptcy, insurance coverage, indemnity and contribution claims, breach of fiduciary duty allegations, purported product defects, stock purchase agreements, stock options, exit rights, royalties, and alleged False Claims Act violations.  Her experience spans a wide range of industries, including the consumer products, energy, chemicals, technology, healthcare, financial services, insurance, fashion, and building materials sectors.

Ms. Simson has counseled both companies and individuals in cases across the country, is experienced both in trials and appeals, and has deep experience with multi-district litigation, class actions, and the coordination of related actions in both federal and state courts.  She also has significant brief-writing and oral advocacy experience and has drafted and argued both discovery and dispositive motions in federal and state courts.  In addition, Ms. Simson has experience providing counsel in transactional and regulatory contexts, advising on risk mitigation and preparedness best practices, and developing coordinated defense strategies integrating business, media, regulatory, and litigation dimensions.

Photo of Elizabeth J. Sullivan Elizabeth J. Sullivan

Elizabeth J. Sullivan is an associate in the Litigation Practice of Greenberg Traurig’s New York office.