Class Actions Brief Blog

The aphorism “If at first you don’t succeed . . .” has special significance in class litigation.  Rule 23(c)(1)(C) expressly provides that an order granting or denying class certification “may be altered or amended before final judgment,” and the Fourth Circuit has made it clear that the district court must decertify a class if “it becomes apparent, at any time during the pendency of the proceeding that class treatment of the action is inappropriate.” Stott v. Haworth, 916 F.2d 134, 139 (4th Cir. 1990).  But Judge Childs declined to decertify a class of plaintiffs who contended that their roofing shingles were defective in Brooks v. GAF Materials Corp., No. 8:11-cv-00983 (June 6, 2014). Significantly, citing district court rulings in the Second Circuit, Judge Childs remarked that “a court should be wary of revoking a certification order completely at a late stage in the litigation process.” Although this observation is difficult to square with the fact that the plaintiffs continue to bear the burden to show class certification is appropriate throughout the entire case, the Court doesn’t grapple with that issue, and declines to equate the claims in the case before it with the commonality ruling in Comcast.  Judge Childs also made short shrift of the argument that the failure to accept an offer of judgment impacted the adequacy of the named plaintiff to represent the class.