The Certification Order

Once the court has determined that class action is the appropriate method of resolving the disputes, the judge issues a certification order. The order defines the terms of the lawsuit, defines the class, defines the issues of the case, and appoints the class representative.

In defining the class, the court has several options. The court may certify the class as proposed. If, however, the court determines that there are conflicts between the class members, the court may certify a modified class. The court could modify the class by splitting the group into subclasses, each with its own representative. The court also may choose to certify only certain issues, creating a partial class action on those issues alone, and leaving class members free to pursue remaining issues in individual suits.

In appointing the class representative, the court also has many options. In cases involving a plaintiff class, the plaintiffs typically nominate the representative. In cases involving a defendant class, it is also the plaintiff who typically nominates a defendant representative. In either case, the court has the discretion to reject the nomination and appoint another appropriate representative. This can be particularly important in defendant class cases. Because the defendant class representative is being asked to take on the burden of protecting absent class members from incurring liability, the court must ensure that the representative is capable of handling the tasks. In making this determination, the court will consider the same factors used in selecting a plaintiff representative, but may subject the nominated defendant representative to even greater scrutiny. The court will examine the resources of the named representative, as well as his or her stake in the case.