By Joseph A. Liebman
Many practitioners will tell you that there is one vital moment in class action litigation—the trial court’s decision regarding class certification. Denial of certification is often referred to as the “death-knell” of a class action, often leading to the end of the case. See, e.g., Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017). On the other hand, a “grant of class status can put considerable pressure on the defendant to settle, even when the plaintiff’s probability of success on the merits is slight. Many corporate executives are unwilling to bet their company that they are in the right in big-stakes litigation, and a grant of class status can propel the stakes of a case into the stratosphere.” Blair v. Equifax Check Services, 181 F.3d 832 (7th Cir. 1999).
So how does a class action practitioner satisfy the burden to obtain class certification to avoid the dreaded death-knell? Much of the recent federal jurisprudence surrounding FRCP 23 is focused on whether it is appropriate or necessary to analyze the merits of the claims for relief at the class certification stage. For many years, it was understood that merits-analysis was off-limits to determine class action certification. See, e.g., Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975); Hernandez v. Alexander, 152 F.R.D. 192 (D. Nev. 1993). However, numerous federal courts have recently clarified that class certification analysis will “frequently overlap with the merits of the plaintiff’s underlying claim.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). In order to properly analyze many of the necessary class action factors, such as commonality, typicality, and predominance, trial courts need to understand—and thus class action plaintiffs need to show—precisely how the elements of the pending claims will be proven at trial. This is necessary in order to determine whether the pending claims can and will be proven with common and uniform evidence and thus are appropriate for a class proceeding. To be clear, a class action plaintiff need not prove that he or she is going to prevail at trial in order to obtain class certification. However, a class action plaintiff must show that “the evidence establishes that a common question is capable of class-wide resolution.” Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 667 (9th Cir. 2022).
But what have Nevada courts said about the merits of the claims as it pertains to class action certification? Unfortunately, not much. The first Nevada opinion that alluded to the elements of the pending claims for class certification purposes is Shuette v. Beazer Homes Holdings Corp., 124 P.3d 530 (Nev. 2005). However, Shuette does not sufficiently explain that in order to show commonality, typicality, and/or predominance, the plaintiff must come forth with common evidence that would make the claims—or at least certain elements of those claims— appropriate for uniform resolution in a class proceeding. Even worse, much of Nevada class action jurisprudence remains colored by the following outdated statement: “In analyzing whether it should certify a class, the court should generally accept the allegations of the complaint as true. An extensive evidentiary showing is not required.” Meyer v. Eighth Judicial Dist. Court, 885 P.2d 622 (Nev. 1994). Meyer remains at odds with federal jurisprudence, which repeatedly holds that class certification is not “a mere pleading standard.” Wal-Mart Stores, Inc., 564 U.S. at 350. Accordingly, many class action plaintiffs in Nevada can cite to Meyer to distinguish the federal certification burden under FRCP 23 and achieve a more relaxed standard under NRCP 23, thereby avoiding any obligation to include—or at least describe—proposed, uniform evidence with a motion for class certification.
Recently, the Supreme Court of Nevada has indicated a willingness to bring the Nevada class certification standard more in line with federal precedent. Specifically, the Supreme Court of Nevada recently stated that “merits questions may be considered to the extent—but only to the extent—that they are relevant to determine whether the Rule 23 prerequisites for class certification are satisfied.” Sargeant v. Henderson Taxi, 3394 P.3d 1215, 1219 (Nev. 2017). While certainly a step in the right direction, it still does not mirror much of the federal authority, where “it is not correct to say a district court may consider the merits to the extent that they overlap with class certification issues; rather, a district court must consider the merits if they overlap with the Rule 23(a) requirements.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011).
About the author
Joseph A. Liebman effectively litigates real estate matters, partnership and limited liability company disputes, product liability cases, professional liability cases, health care matters, and class action cases. He has consistently been recognized among Mountain States Super Lawyer, Best Lawyers, and Benchmark Litigation in the areas of product liability, healthcare, and professional liability. Mr. Liebman is actively involved in the community in his role on the Las Vegas Natural History Museum`s Board of Directors.
About the article
This article was originally published in the Communiqué (Apr. 2025), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2025/communique-apr-2025/. The printed magazine was mailed to CCBA members on March 28, 2025.
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