predominance inquiry in Colorado

2015Where, as here, a plaintiff seeks class certifi-'eation under C.R.C.P. 28(b)(8), certification is appropriate if "questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and'... a class action is superior to other available methods for the fair and efficient adjudication of the controversy." 179 The predominance inquiry is a "fact-driven, pragmatic inquiry," and the dlstrlct court must determine "whether the proof at trial will be predominantly common to the class or primarily individualized." Medina v. Conseco Annuity Assur

2011To certify a class under C.R.C.P. 23(b)(3), a trial court must find that common questions "predominate over any questions affecting only individual members" and that class resolution is "superior to other available methods for the fair and efficient adjudication of the controversy." The predominance inquiry focuses on "whether the proof at trial will be predominantly common to the class or primarily individualized." Medina, 121 P.3d at 348 .

2024Gagne v. Gagne, 2014 COA 127, ¶ 84 (citation omitted)). “[T]he court should rely on the pleading party’s characterization of its claims and should not consider what the party should or might have pleaded.” Id. at ¶ 81. ¶ 46 Here, the “predominance test” described in Gagne yields a clear answer: The “essence” of this case sounds in contract rather than tort.

2024Gagne v. Gagne, 2014 COA 127, ¶ 84 (citation omitted)). “[T]he court should rely on the pleading party’s characterization of its claims and should not consider what the party should or might have pleaded.” Id. at ¶ 81. ¶ 46 Here, the “predominance test” described in Gagne yields a clear answer: The “essence” of this case sounds in contract rather than tort.

2011The predominance inquiry "usually involves liability, not damages[,]" and the "need for some proof of individual damages does not preclude certification under C.R.C.P. 23(b)(3)." Buckley Powder Co. v. State, 70 P.3d 547, 554 (Colo.App.2002).

2011A. Class-Wide Theory of Proof To satisfy the predominance requirement of C.R.C.P. 23(b)(3), a plaintiff must show that legal or factual questions common to the class predominate over questions affecting only individual members. "[The predominance prong of the C.R.C.P. 23(b)(3) inquiry usually involves liability, not damages." Buckley Powder Co. v. State, 70 P.3d 547, 554 (Colo.App.2002); see also Jackson, 262 P.3d at 889 .

2011Often, the issue most relevant to this inquiry is "whether the plaintiff advances a theory by which to prove or disprove 'an element on a simultaneous, class-wide basis, since such proof obviates the need to examine each class member's individual position.' " Benzing, 206 P.3d at 820 (quoting Lockwood Motors, Inc. v. Gen.

2011Often, the issue most relevant to this inquiry is "whether the plaintiff advances a theory by which to prove or disprove an element on a simultaneous, class-wide basis, since such proof obviates the need to examine each class member's individual position'" Benzing, 206 P.3d at 820 (quoting Lockwood Motors, Inc. v. Gen.

2011Co., 121 P.3d 345, 348 (Colo.App.2005), that requires a trial court to rigorously analyze the evidence presented, see Jackson, 262 P.3d at 881-82 .

2011A. Class-Wide Theory of Proof To satisfy the predominance requirement of C.R.C.P. 23(b)(3), a plaintiff must show that legal or factual questions common to the class predominate over questions affecting only individual members. "[The predominance prong of the C.R.C.P. 23(b)(3) inquiry usually involves liability, not damages." Buckley Powder Co. v. State, 70 P.3d 547, 554 (Colo.App.2002); see also Jackson, 262 P.3d at 889 .

2010Thus, the class representatives must advance "a theory by which to prove or disprove 'an element on a simultaneous, class-wide basis, since such proof obviates the need to examine each class member's individual position'" Benzing, 206 P.3d at 820 (quoting Lockwood Motors, Inc. v. General Motors Corp., 162 F.R.D. 569, 580 (D.Minn.1995)).

2009See Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1359 (11th Cir.2009) (concluding trial court abused its discretion by not certifying class because, in part, it "accepted the employees' expert testimony without examining it or explaining its affect [sic] on the predominance analysis."); In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d at 323-24 ("Weighing conflicting expert testimony at the certification stage ... may be integral to the rigorous analysis Rule 23 demands."); In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6, 25 (1st Cir.2008) ("[A] searching inq

2009See Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1359 (11th Cir.2009) (concluding trial court abused its discretion by not certifying class because, in part, it "accepted the employees' expert testimony without examining it or explaining its affect [sic] on the predominance analysis."); In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d at 323-24 ("Weighing conflicting expert testimony at the certification stage ... may be integral to the rigorous analysis Rule 23 demands."); In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6, 25 (1st Cir.2008) ("[A] searching inq

2009See Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1359 (11th Cir.2009) (concluding trial court abused its discretion by not certifying class because, in part, it "accepted the employees' expert testimony without examining it or explaining its affect [sic] on the predominance analysis."); In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d at 323-24 ("Weighing conflicting expert testimony at the certification stage ... may be integral to the rigorous analysis Rule 23 demands."); In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6, 25 (1st Cir.2008) ("[A] searching inq

2009See Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1359 (11th Cir.2009) (concluding trial court abused its discretion by not certifying class because, in part, it "accepted the employees' expert testimony without examining it or explaining its affect [sic] on the predominance analysis."); In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d at 323-24 ("Weighing conflicting expert testimony at the certification stage ... may be integral to the rigorous analysis Rule 23 demands."); In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6, 25 (1st Cir.2008) ("[A] searching inq

2009See Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1359 (11th Cir.2009) (concluding trial court abused its discretion by not certifying class because, in part, it "accepted the employees' expert testimony without examining it or explaining its affect [sic] on the predominance analysis."); In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d at 323-24 ("Weighing conflicting expert testimony at the certification stage ... may be integral to the rigorous analysis Rule 23 demands."); In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6, 25 (1st Cir.2008) ("[A] searching inq