Motion for Class Certification in New York

Background

A class action allows the courts to manage multiple claims that are typical of a class in a way that conserves judicial resources, reduces litigation expenses and avoids inconsistent outcomes. (Roberts v. Ocean Prime LLC, 148 A.D.3d 525 [1st Dept. 2017].) This is achieved by allowing one or more members of a class to sue (or be sued) as representative parties on behalf of all. (Civ. Prac. Law & Rules, § 901.)

How to Structure the Motion

Section 901 of Civil Practice Law and Rules sets forth five prerequisites to class certification:

1. the class is so numerous that joinder of all members whether otherwise required or permitted is impracticable;
2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;
4. the representative parties will fairly and adequately protect the interests of the class; and
5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

(Civ. Prac. Law & Rules, § 901; Weinberg v. Hertz Corp., 116 A.D.2d 1, 4 [1st Dept. 1986].)

“Plaintiff bears the burden of establishing the propriety of certifying a class, and that the factors set forth in CPLR 901 favor class-action certification.” (Brissenden v. Time Warner Cable of New York City, 25 Misc.3d 1084, 1088 [Sup. Ct., NY County 2009]; CLC/CFI Liquidating Trust v. Bloomingdale’s, Inc., 50 A.D.3d 446, 447 [1st Dept. 2008].)

The Court’s Decision

The action may be maintained as a class action only if the court finds that these prerequisites have been satisfied. Among the matters which the court shall consider in determining whether the action may proceed as a class action are:

1. the interest of members of the class in individually controlling the prosecution or defense of separate actions;
2. the impracticability or inefficiency of prosecuting or defending separate actions;
3. the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
4. the desirability or undesirability of concentrating the litigation of the claim in the particular forum;
5. the difficulties likely to be encountered in the management of a class action.

(Civ. Prac. Law & Rules, § 902; Chimenti v. American Express Co., 97 A.D.2d 351 [N.Y. App. Div. 1983].).

It is widely held that the criteria for class certification should be liberally construed and that the determination of whether a lawsuit qualifies as a class action rests within the sound discretion of the trial court. (City of New York v. Maul (2010) 14 N.Y.3d 499.) This liberal construction has been repeatedly implemented by New York courts in deciding whether to certify a class. (Friar v. Vanguard Holding Corp. (1980) 78 A.D.2d 83, 90-92.) "[A]ny error, if there is to be one" should be committed in favor of allowing the class action." (Id. at 90-92.)

"Class action certification is thus appropriate if on the surface there appears to be a cause of action which is not a sham." (Pludeman v. Northern Leasing Sys., Inc. (2010) 74 A.D.3d. 420, 422.)

A class may be certified provided the plaintiffs establish compliance with the five prerequisites to class certification enumerated in Section 901 of Civil Practice Law and Rules. (Bartis v. Harbor Tech, LLC, 147 A.D.3d 51, 63 [2d Dept 2016].)

The first prerequisite of numerosity requires that a plaintiff must demonstrate that joinder of all members would be impracticable. (Borden v. 400 E. 55th Assoc. (2014) 24 N.Y.3d 382, 399.) While no particular number of persons must be shown, numerosity may be shown with fewer than 40 putative class members. (Caesar v. Chemical Bank, 118 Misc.2d 118, 121 [Sup. Ct., N.Y. County 1983].)

In regards to common questions of fact and law, "the rule requires predominance, not identity or unanimity, among class members" and "the fact that questions peculiar to each individual may remain after resolution of the common questions is not fatal to the class action." (Friar v. Vanguard Holding Corp. (1980) 78 A.D.2d 83, 98-99.) "To the extent that there may be differences among the class members as to the degree in which they were damaged, the court may try the class aspects first and have the individual damage claims heard by a special master or create subclasses." (Godwin Realty Assoc. v. CATV Enters. (2000) 275 A.D.2d 269, 270.)

The prerequisite of typicality requires that "the claims asserted by the plaintiff(s) seeking to represent the class, as well as any defenses to those claims, be typical of the claims made by and the defenses asserted against the class members." (Pludeman v. Northern Leasing Sys., Inc. (2010) 74 A.D.3d 420, 423.) "If it is shown that a plaintiff’s claims derive 'from the same practice or course of conduct that gave rise to the remaining claims of other class members and is based upon the same legal theory... [the typicality requirement] is satisfied'." (Id.) "Typicality does not require identity of issues and the typicality requirement is met even if the claims asserted by class members differ from those asserted by other class members." (Id.)

The courts evaluate the adequacy of representation by examining potential conflicts of interest, personal characteristics of the proposed class representatives, and the quality of class counsel. (Pruitt v. Rockefeller Ctr. Props. (1991) 167 A.D.2d 14, 24.) This requirement is intended to ensure that the class representatives and their counsel will fairly and adequately represent the interests of the class. (Borden v. 400 E. 55th Assoc. (2014) 24 N.Y.3d 382, 400.)

In regards to the final prerequisite, the courts recognize that a class action "also yields a public benefit which makes it superior to an administrative complaint," by providing "a means of inducing socially and ethically responsible behavior on the part of large and wealthy institutions which will be deterred from carrying out policies... harmful to large numbers of individuals." (Weinstein v. Jenny Craig Operations, Inc. (2013) 41 Misc.3d 1220.)

Timeline

"Within sixty days after the time to serve a responsive pleading has expired for all persons named as defendants in an action brought as a class action, the plaintiff shall move for an order to determine whether it is to be so maintained." (Civ. Prac. Law & Rules, § 902.)