SmithAmundsen (SA) mass tort/class action (MTCA) attorneys obtained a significant victory from Judge Posner of the Seventh Circuit vacating class certification in Creative Montessori Learning Centers v. Ashford Gear, 662 F.3d 913 (7th Cir. 2011). In the opinion, the Seventh Circuit raised the bar that class counsel must clear in order to satisfy the adequacy prong for class certification. Creative Montessori Learning Centers holds that because class counsel are fiduciaries of the class, any serious doubts about their ability to loyally represent the interests of the class necessitate a denial of class certification. Judge Posner took issue with the district court’s holding that only the most egregious conduct by class counsel “could ever arguably justify denial of class status,” stating that such a ruling “would if taken literally condone, and by condoning invite, unethical conduct.” It underscores the importance of a rigorous analysis of the adequacy requirement to protect the interests of the class.
To secure this significant result, the MTCA team took an unconventional approach: the only issue it raised in its brief was adequacy of class counsel. Defense counsel ordinarily oppose class certification by presenting defenses such as the predominance of individual questions over common ones.