Class certification is the decisive stage
Most class actions are decided not at trial but at certification. A defendant should prepare for that stage as it would for a substantive dispute.
Where leverage shifts. Certification is the point that most changes bargaining power. Approval can concentrate risk quickly, while a refusal can leave plaintiffs unable to sustain a large portfolio of claims.
Common issues must predominate. Common issues need to predominate over individual ones. If damages require case-by-case assessment, the collective structure may lose its foundation.
Test the expert model. The plaintiffs' economic model often carries the whole class theory. The defence should test whether it can run on common evidence, through methodology challenges, document review and cross-examination of experts and business records before certification is decided.
Build the record around the theory of harm. Discovery, expert reports and examinations should be organized around how the shared-harm model will be tested, not treated as routine paperwork.
A procedural caution. Some courts resist a rigid separation between certification and merits questions. Show concretely why the methodology fails on the actual business records.
The cost trade-off. Certification work demands more senior lawyer time, but it can reduce later costs. The aim is to focus on the issues that determine the scale of risk while the class structure is still unproven.
