Defining Common and Individual Issues in Class Actions: What a Reasonable Jury Could Do

Litigation partner Aaron Van Oort and associate John Rockenbach co-authored an article for the Minnesota Law Review, “Defining Common and Individual Issues in Class Actions: What a Reasonable Jury Could Do.”

The authors discuss the distinction between common and individual issues, the single most important concept in the modern class action and the one that most bedevils courts in practice. Rule 23(a)(2) of the Federal Rules of Civil Procedure makes the existence of at least one common issue a prerequisite for every class action, and the predominance of common issues over individual ones is a prerequisite for class actions seeking money damages under Rule 23(b)(3).

In the article, they propose, to advance and clarify the law, that courts distinguish between common and individual issues in Rule 23 class actions by asking what a reasonable jury could do.

Van Oort and Rockenbach suggest adopting a reasonable-jury rule for distinguishing between common and individual issues to clarify the law of class actions by answering a great number of practical questions, such as whose evidence should be considered in the analysis, whether an expert’s opinion must be admissible to be considered, and whether a finding that some issues are common allows the court to treat other issues as common. For other questions, the reasonable-jury rule will contribute to the analysis but not answer it.