Do the Second Circuit’s Legal Standards on Class Certification Incentivize Forum Shopping?: A Comparative Analysis of the Second Circuit’s Class Certification Jurisprudence

October 26, 2016

The Class Action Fairness Act altered the jurisdictional landscape of class actions by relaxing the barriers to satisfying diversity jurisdiction in federal court.  As a result, plaintiffs’ attorneys frequently find themselves filing class actions in federal court, and face the critical question of where to initiate their lawsuit.  Many plaintiffs’ attorneys consider the favorability of legal standards when determining the forum in which to file their class action.  Among other substantive and procedural considerations, the applicable class certification standards of the forum are an important forum selection factor.

The Second Circuit, in particular, is a forum that plaintiffs’ attorneys might consider due to its novel class certification standards on a range of unique areas of certification.  Plaintiffs seeking certification of very discrete class actions will be mindful of the Second Circuit’s certification criteria when deciding on a forum for their class action.  This Note details the Second Circuit’s class certification jurisprudence on the standard of appellate review of interlocutory appeals, satisfaction of Federal Rule of Civil Procedure 23(b)(3)’s predominance requirement in Rule 23(c)(4) single issue class actions, and certification of defendant classes under Rule 23(b)(2).  This Note assesses whether these certification standards encourage forum shopping in district courts within the Second Circuit in light of the contrasting standards that other circuits have adopted on these issues.

November 2016

No. 2