Attack class certification early

Insurers need to decide whether to attack the certification of a class action lawsuit up front, or wait until after certification to respond to the claim, Roderick S.W. Winsor, a partner at Blaney McMurtry LLP, told delegates at the Insurance Law Update presentation on June 6.
The Number 1 goal is to defeat a certification motion, Winsor said. Even if you fail to defeat certification, in doing so, you may be able to narrow the claim size, reduce the class size and reduce the defense costs.
Five distinguishing criteria must be present in order a class action to be certified:
Does the claim disclose a cause of action?
Is there an identifiable class?
Are there common issues?
Is a class proceeding the preferable procedure?
Is there a representative plaintiff?
The cause of action and whether a class action is the preferable way to proceed are the two most important considerations.
When determining if the claim discloses a cause of action, for example, one must consider whether the plaintiff would win the trial if all of the information he or she provides is true.
Challenging at the certification level may also be wise because the disclosure of a cause of action is often is a real obstacle for class actions, Winsor suggested in materials prepared for his presentation. For example, a cause may involve novel claims that havent been adjudicated before or they may involve proving that the government did not show a proper duty of care, which may be difficult to do.
Whether or not there is an identifiable class appears to be merely a definition issue, but it can be a thorny issue in some cases. A common factual basis is not sufficient to establish a class; there must be an issue common to everyone identified in the class.
Is a class action proceeding the preferable procedure? Perhaps there is a better solution to the problem. Three considerations must be addressed: judicial economy, behaviour modification and the trump card: access to justice, Winsor said.