LCJ Amicus Brief Urges the Third Circuit to Reverse Class Action Certification

LCJ’s amicus brief in Drummond v. Progressive Specialty Insurance Co. urges the Third Circuit Court of Appeals to reverse an Eastern District of Pennsylvania federal court’s certification of a class action on the basis of a “common question” that does not indicate that any breach of contract or that the claims are consistent across the class.

LCJ’s brief argues that, under the Rules Enabling Act, a district court cannot use the Rules of Civil Procedure, including Rule 23, to expand or contract litigants’ substantive rights. But the district court’s order certifying this class does just that by accepting Plaintiffs’ “common question.” The question they offered—which asks whether a single step in Defendants’ methodology for determining actual cash value on total loss claims is improper—does not generate answers that further classwide resolution: an answer to Plaintiffs’ “common question” does not indicate that any underlying contract was breached, let alone establish that such claims are consistent across the class.

The district court’s ruling is inconsistent with a Third Circuit holding that “[a] defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right.” Carrera v. Bayer Corp., 727 F.3d 300, 307 (3d Cir. 2013).

The district court’s class certification order converted Rule 23 from a procedural mechanism into a substantive alteration of both Plaintiffs’ burden of proof and Defendants’ ability to present individual defenses. The Rules Enabling Act expressly forbids the use of the Federal Rules of Civil Procedure in this way.

LCJ’s brief, written by Stephanie A. Douglas, Susan M. McKeever, and Nicole K. Haelterman of Bush Seyferth PLLC, is available here.