Mac Newton


Class certification confers a fearsome power on plaintiffs. Organizing a group of otherwise disparate potential claimants through a class action produces a mighty concentration of power that plaintiffs can wield against defendants. This power is exerted on defendants in the form of “hydraulic pressure” to settle, shifting focus from litigation to settlement. The risk involved with one jury standing between a defendant and “potentially ruinous liability” often proves to be intolerable for corporate defendants. The in terrorem nature of class actions means that just by obtaining class certification, plaintiffs achieve a major victory. This notion is borne out by empirical results, with one study that spanned nine years finding that, once certified, classes “almost always settled.”

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