Motion for Class Certification - Colorado

PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

DISTRICT COURT, [________________________________] COUNTY, COLORADO

Court Address: [________________________________]

Case Number: [________________________________]

Division: [____] Courtroom: [____]

PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES

NOTICE OF MOTION

PLEASE TAKE NOTICE that Plaintiff [________________________________] moves this Court, pursuant to C.R.C.P. 23, for an order certifying this action as a class action. Pursuant to C.R.C.P. 121, § 1-15, any response to this Motion must be filed within 21 days after service of this Motion, and any reply within 14 days after service of the response.

THE MOTION

Plaintiff [________________________________] ("Plaintiff"), individually and on behalf of all others similarly situated, respectfully moves this Court for an Order:

1. Certifying this action as a class action pursuant to C.R.C.P. 23(a) and 23(b)(3) [and/or 23(b)(1) and/or 23(b)(2)];

2. Appointing Plaintiff [________________________________] as Class Representative;

3. Appointing [________________________________] and [Firm Name] as Class Counsel pursuant to C.R.C.P. 23; and

4. Directing the parties to submit, or approving Plaintiff's proposed, form and manner of class notice under C.R.C.P. 23(c)(2).

This Motion is based on this Motion, the accompanying Memorandum of Points and Authorities, the Declaration(s) of [________________________________], the pleadings and papers on file, and any evidence and argument presented at the hearing on this Motion.

Proposed Class Definition

Plaintiff seeks certification of the following Class:

All persons in [the State of Colorado / the United States] who [________________________________] during the period from [__/__/____] through [__/__/____] (the "Class Period").

Plaintiff also seeks certification of the following Subclass(es), if appropriate:

Excluded from the Class are: Defendant, its officers, directors, employees, agents, parents, subsidiaries, affiliates, and legal representatives; the judicial officers assigned to this litigation and members of their immediate families and staff; persons who timely and validly request exclusion; and [________________________________].

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

This case presents classic grounds for class treatment under C.R.C.P. 23. Defendant engaged in standardized conduct affecting [________________________________] in a uniform manner, and the central questions — whether that conduct was unlawful and whether it caused classwide injury — can be resolved with common, generalized proof. Individual litigation of these claims would be impracticable, duplicative, and uneconomical. Certification is the superior vehicle for adjudicating this controversy.

II. STATEMENT OF FACTS

A. Background of the Litigation

1. [________________________________]

2. [________________________________]

B. Defendant's Standardized Conduct

3. [________________________________]

4. [________________________________]

C. Plaintiff's Experience as a Class Member

5. Plaintiff [________________________________] is a member of the proposed Class.

6. On or about [__/__/____], Plaintiff [________________________________]. See Declaration of [________________________________], Ex. [____].

D. Evidence of Classwide Harm

7. [________________________________]

8. [________________________________]

III. LEGAL STANDARD

Class certification in Colorado is governed by C.R.C.P. 23, which is modeled on Federal Rule of Civil Procedure 23 and is interpreted consistently with federal authority where Colorado has not held otherwise. A plaintiff must satisfy all four prerequisites of C.R.C.P. 23(a) — numerosity, commonality, typicality, and adequacy — and at least one subdivision of C.R.C.P. 23(b).

The trial court must conduct a "rigorous analysis" and "determine to its satisfaction that each C.R.C.P. 23 requirement is met." Jackson v. Unocal Corp., 262 P.3d 874, 877 (Colo. 2011). In doing so, the court "may consider any factual or legal disputes relevant to the C.R.C.P. 23 requirements, including those disputes that incidentally overlap with the merits of the case," but "may not resolve factual or legal disputes to screen out or prejudge the merits." Id. Notably, the Colorado Supreme Court in Jackson declined to impose a preponderance-of-the-evidence burden, instead requiring only that the court be satisfied "to its satisfaction" after rigorous analysis. Id. at 882. The court's obligation to analyze the evidence extends to expert disputes, though the court "need not determine which expert ultimately will prevail on the merits." Id. at 877.

IV. ARGUMENT

A. The Proposed Class Satisfies C.R.C.P. 23(a)

1. Numerosity — C.R.C.P. 23(a)(1)

C.R.C.P. 23(a)(1) requires that "the class is so numerous that joinder of all members is impracticable."

☐ The proposed Class consists of approximately [________________________________] members.

☐ Evidence supporting numerosity: [________________________________].

☐ Joinder is impracticable because: [________________________________].

The precise number and identities of Class members are ascertainable from Defendant's records. Numerosity is generally satisfied where the class substantially exceeds 40 members.

2. Commonality — C.R.C.P. 23(a)(2)

C.R.C.P. 23(a)(2) requires "questions of law or fact common to the class." Common questions include:

☐ Whether Defendant engaged in [________________________________];
☐ Whether Defendant's conduct was unlawful, unfair, or deceptive;
☐ Whether Defendant's uniform [representations/omissions/practice] applied to the Class;
☐ Whether Class members suffered injury as a result of Defendant's conduct;
☐ The appropriate measure of damages or other relief;
☐ [________________________________]

These questions are capable of classwide resolution because they "depend upon a common contention" whose truth or falsity will resolve an issue central to each member's claim "in one stroke." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (persuasive).

3. Typicality — C.R.C.P. 23(a)(3)

C.R.C.P. 23(a)(3) requires that the representative's claims be "typical of the claims or defenses of the class." Plaintiff's claims arise from the same course of conduct and the same legal theories as the claims of the Class:

☐ Plaintiff was subjected to the same [conduct/practice] as Class members;
☐ Plaintiff's claims arise from the same course of conduct by Defendant;
☐ Plaintiff's legal theories are identical to those of the Class;
☐ [________________________________]

4. Adequacy — C.R.C.P. 23(a)(4)

C.R.C.P. 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class."

a. Adequacy of the Class Representative. Plaintiff has no conflicts with the Class, has a sufficient stake in the outcome, and is committed to vigorously prosecuting this action. See Declaration of [________________________________], Ex. [____].

b. Adequacy of Class Counsel. Proposed Class Counsel are experienced in complex class litigation, have committed adequate resources, and will fairly and adequately represent the Class. See Declaration of [________________________________], Ex. [____] (counsel's experience and resources).

B. The Proposed Class Satisfies C.R.C.P. 23(b)(3): Predominance and Superiority

C.R.C.P. 23(b)(3) requires that common questions "predominate over any questions affecting only individual members" and that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy."

1. Predominance

Common questions predominate because liability turns on Defendant's uniform conduct, provable through common evidence:

☐ Defendant's conduct was standardized across the Class;
☐ Liability can be established through common proof;
☐ Damages can be calculated on a classwide basis using [________________________________];
☐ Individual issues, if any, are manageable through subclasses or individualized post-liability proceedings;
☐ [________________________________]

Plaintiff's damages methodology measures only the harm attributable to Defendant's alleged wrongful conduct and is consistent with Plaintiff's theory of liability. See Expert Report of [________________________________], Ex. [____]; cf. Comcast Corp. v. Behrend, 569 U.S. 27, 35 (2013) (persuasive). Under Jackson, the Court may scrutinize the parties' competing expert showings to the extent necessary to satisfy itself that predominance is met, without resolving the merits. Jackson, 262 P.3d at 887.

2. Superiority

A class action is superior because:

☐ Individual control: Class members' individual stakes are small relative to the cost of litigation;
☐ Other litigation: Plaintiff is not aware of other pending litigation by Class members concerning this controversy [or: the following litigation is pending: [________________________________]];
☐ Desirability of this forum: [________________________________];
☐ Manageability: Common issues predominate, Class members are identifiable from Defendant's records, and efficient notice is feasible.

C. Alternative: Certification Under C.R.C.P. 23(b)(1) and/or (b)(2)

☐ C.R.C.P. 23(b)(1): Separate actions would risk inconsistent adjudications establishing incompatible standards of conduct for Defendant, or would be dispositive of non-party members' interests.

☐ C.R.C.P. 23(b)(2): Defendant acted or refused to act on grounds generally applicable to the Class, making final injunctive or corresponding declaratory relief appropriate as to the Class as a whole.

D. The Class Is Ascertainable

The proposed Class is defined by objective criteria and is ascertainable from Defendant's business records, including [________________________________]. See Jackson, 262 P.3d at 884 (affirming finding of an identifiable class). Class membership does not depend on the resolution of any merits question.

V. PROPOSED TRIAL PLAN AND CLASS NOTICE

A. Trial Plan

Plaintiff proposes to try the common liability questions on a classwide basis using the common evidence identified above, followed by [________________________________] [e.g., a classwide damages model / individualized claims administration] for the determination of relief. A proposed trial plan is attached as Ex. [____].

B. Class Notice

For a class certified under C.R.C.P. 23(b)(3), Plaintiff will provide the best notice practicable under the circumstances, including individual notice to members identifiable through reasonable effort. The proposed notice (Ex. [____]) describes the nature of the action, the class definition, the claims and defenses, the right to enter an appearance through counsel, the right and procedure to request exclusion, and the binding effect of a class judgment.

☐ Direct mail notice to identifiable Class members;
☐ Email notice where addresses are known;
☐ Publication notice in [________________________________];
☐ Dedicated case website;
☐ [________________________________]

VI. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court certify the proposed Class under C.R.C.P. 23(a) and 23(b)(3) [and/or (b)(1)/(b)(2)], appoint Plaintiff as Class Representative, appoint the undersigned as Class Counsel, and approve the proposed form and manner of class notice.

DATED: [__/__/____]

Respectfully submitted,

[________________________________]
Attorneys for Plaintiff and the Proposed Class

By: [________________________________]
[Attorney Name], Atty. Reg. No. [________]
[Firm Name]
[Address]
[City, State ZIP]
Telephone: [________________________________]
Email: [________________________________]

CERTIFICATE OF CONFERRAL (C.R.C.P. 121, § 1-15(8)): Undersigned counsel conferred with opposing counsel regarding this Motion on [__/__/____]. ☐ Defendant opposes the relief requested. ☐ The parties were unable to resolve the matter.

EXHIBITS

☐ Exhibit A: Declaration of [________________________________] (Proposed Class Representative)
☐ Exhibit B: Declaration of [________________________________] (Class Counsel)
☐ Exhibit C: Expert Report of [________________________________] (Damages/Liability)
☐ Exhibit D: Proposed Class Notice and Notice Plan
☐ Exhibit E: Proposed Trial Plan
☐ Exhibit F: [________________________________]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served a true and correct copy of the foregoing PLAINTIFF'S MOTION FOR CLASS CERTIFICATION on all counsel of record via:

☐ Colorado Courts E-Filing (CCEF)
☐ First-Class U.S. Mail
☐ Email

to the following:

[________________________________]
[________________________________]

[________________________________]
Signature

Colorado Practice Notes

• Governing rule. C.R.C.P. 23 governs class actions in Colorado district courts and is patterned on Fed. R. Civ. P. 23. Federal Rule 23 authority is persuasive but not binding; Colorado precedent controls where it has spoken.
• Certification standard / burden. Under Jackson v. Unocal Corp., 262 P.3d 874 (Colo. 2011), the trial court must conduct a "rigorous analysis" and be satisfied that each Rule 23 element is met. The Colorado Supreme Court declined to require a preponderance-of-the-evidence burden (reversing the Court of Appeals on that point), but did not forbid a trial court from applying one — a subtle and somewhat unsettled point worth addressing in briefing. The court may consider merits-overlapping disputes (including expert disputes) only to the extent necessary to decide the Rule 23 question, and may not prejudge the merits.
• Consumer-class nuance. The Colorado Consumer Protection Act, § 6-1-113(2), C.R.S., has historically barred private CCPA claims from proceeding as class actions for statutory/treble damages. Confirm the current scope of this bar and any legislative changes before pleading a CCPA damages class; consider common-law or other statutory theories for a damages class, or limit CCPA relief to injunctive relief.
• Interlocutory appeal. Colorado permits discretionary interlocutory appeal of a class-certification order under C.R.C.P. 23(f) and § 13-20-901, C.R.S. (the analog to federal Rule 23(f)). Review is by the Colorado Court of Appeals in its discretion; a petition must be filed within the time prescribed by the rule. See Jackson v. Unocal Corp., 231 P.3d 12 (Colo. App. 2009) (interlocutory review granted under Rule 23(f) and § 13-20-901), rev'd, 262 P.3d 874 (Colo. 2011).
• Key cases. Jackson v. Unocal Corp., 262 P.3d 874 (Colo. 2011) (rigorous analysis; burden; merits overlap; expert disputes); Garcia v. Medved Chevrolet, Inc., 263 P.3d 92 (Colo. 2011) (companion decision applying Jackson to consumer claims); State Farm Mut. Auto. Ins. Co. v. Reyher, 266 P.3d 383 (Colo. 2011) (companion).

Sources and References

• C.R.C.P. 23 (Colorado class action rule)
• § 13-20-901, C.R.S. (interlocutory appeal of class certification)
• § 6-1-101 et seq., C.R.S. (Colorado Consumer Protection Act); § 6-1-113(2) (class-action limitation)
• Jackson v. Unocal Corp., 262 P.3d 874 (Colo. 2011)
• Jackson v. Unocal Corp., 231 P.3d 12 (Colo. App. 2009) (Rule 23(f) interlocutory review), rev'd, 262 P.3d 874 (Colo. 2011)
• Garcia v. Medved Chevrolet, Inc., 263 P.3d 92 (Colo. 2011)
• Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (persuasive)
• Comcast Corp. v. Behrend, 569 U.S. 27 (2013) (persuasive)

This template is for informational purposes only and does not constitute legal advice. Colorado class certification practice — particularly the Jackson standard and the CCPA class-action bar — has traps for the unwary. Consult experienced Colorado class action counsel before filing.