Class action lawsuit certifications on the rise

Certification of class action lawsuits is on the increase, raising tactical questions about whether defendant insurers should even bother fighting certification, or simply fight the good fight at trial.
Laura Cooper, partner at Fasken Martineau, discussed class action statistics and legal strategies at the National Insurance Conference of Canada (NICC) in Vancouver on Sept. 27.
“With respect to class actions generally, I’m sorry to say the news isn’t great,” Cooper said. “Certification of class actions is definitely on the upswing.
“In the past year, in Ontario, where I primarily practise, out of 24 certification motions that were contested, 20 of them were certified. That was a change from the previous record of some 60% certification.”
In other words, it is getting to be more difficult for defendant insurers to defeat certification.
“Not surprisingly, given those stats, we’re seeing lots of new class actions in all kinds of fields – product liability, franchising, competition, securities and consumer remedies,” Cooper said. “Those aren’t going to go down anytime soon.”
Also, Cooper said, the costs to fight class actions are increasing, because defendant insurers are trying harder and harder to defeat class certification or at least narrow its scope.
“So certification motions on class actions can easily be hundreds of thousands of dollars or more before the determination,” Cooper said. “Of course, that’s because the stakes are so high for the defendants.”
Strategically, Coooper said there aren’t many opportunities for defendant insurers to accept certification and just go ahead and fight at trial. “As I say, that’s not going to happen very often, but you should always think about it,” she said.
But in some circumstances, insurers have fought hard throughout the certification process knowing that the plaintiff counsel’s side had limited or depleted resources for a class action trial. Thus, if the defendant’s side knows it has more resources than the plaintiff’s side, it might be beneficial tactically to start a war of attrition by fighting certification from the very outset.