Getting to Yes on the Certification Question

Consent certification orders to facilitate a class settlement have a well-established presence in class action litigation. The rationale for a consent certification in this context is straightforward. Both sides receive a benefit. The plaintiffs obviously receive the settlement consideration while the defendant will be able to put the entire matter behind it in circumstances in which it remains able to exercise a degree of control. For example, the defendant will likely be able to negotiate the class definition, the content and method of dissemination of the notice, as well as the identity of any claims administrator and, potentially, protocols for the administration of claims. However, although the real battleground in class proceedings is often the motion for certification, some of the above benefits may be available in the context of contested litigation
as well. As in all litigation, settlements occur when both sides see value for themselves in the deal they are making. The following lists some of the factors that may lead even defence counsel to consider consenting to certification.