Motion for Class Certification - Delaware

PLAINTIFF'S MOTION FOR CLASS CERTIFICATION

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

C.A. No.: [________________________________]

PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND OPENING BRIEF IN SUPPORT

NOTICE OF MOTION

PLEASE TAKE NOTICE that Plaintiff [________________________________] will present the within Motion for Class Certification to the Court at a date and time to be assigned by the Register in Chancery. Any response shall be filed within the time prescribed by the Court of Chancery Rules and any applicable scheduling order.

THE MOTION

Plaintiff [________________________________] ("Plaintiff"), individually and on behalf of all others similarly situated, respectfully moves this Court, pursuant to Court of Chancery Rule 23, for an Order:

1. Certifying this action as a class action pursuant to Court of Chancery Rule 23(a) and Rule 23(b)(1) and/or 23(b)(2) [and/or 23(b)(3)];

2. Appointing Plaintiff [________________________________] as Class Representative;

3. Appointing [________________________________] and [Firm Name] as Class Counsel pursuant to Court of Chancery Rule 23(d); and

4. Directing notice to the Class to the extent required by Court of Chancery Rule 23(c)(2).

This Motion is based on this Motion, the accompanying Opening Brief, the Affidavit(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 [record and beneficial holders of the common stock of [Company] / persons who [________________________________]] during the period from [__/__/____] through [__/__/____] (the "Class Period"), [and their successors in interest].

Excluded from the Class are: Defendant and any other named defendants, their officers and directors, and their affiliates and legal representatives; [and any persons who timely and validly request exclusion (for a Rule 23(b)(3) class)]; and [________________________________].

OPENING BRIEF IN SUPPORT

I. INTRODUCTION

This action is well suited for class treatment under Court of Chancery Rule 23. [In a stockholder/fiduciary action:] The claims challenge [board conduct/a transaction] affecting all [Company] stockholders in the same way, present common questions regarding the defendants' fiduciary duties, and seek relief that would benefit the entire class. Delaware courts routinely certify such actions as mandatory, non-opt-out classes under Rule 23(b)(1) and (b)(2). See In re Lawson Software, Inc. S'holder Litig., 2011 WL 2185613 (Del. Ch. May 27, 2011).

II. STATEMENT OF FACTS

A. Background of the Litigation

1. [________________________________]

2. [________________________________]

B. Defendant's Challenged Conduct

3. [________________________________]

4. [________________________________]

C. Plaintiff's Standing and Membership in the Class

5. Plaintiff [________________________________] is, and at all relevant times was, a member of the proposed Class [e.g., a stockholder of [Company]].

6. [________________________________]. See Affidavit of [________________________________], Ex. [____].

D. Classwide Nature of the Claims and Relief

7. [________________________________]

8. [________________________________]

III. LEGAL STANDARD

Class certification in the Court of Chancery is governed by Court of Chancery Rule 23, which is patterned on Federal Rule of Civil Procedure 23. The Court applies a two-step analysis. First, the moving party must satisfy the four prerequisites of Rule 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Second, the action must fit within at least one category of Rule 23(b). See In re Lawson Software, Inc. S'holder Litig., 2011 WL 2185613, at 1 (Del. Ch. May 27, 2011); Nottingham Partners v. Dana*, 564 A.2d 1089, 1094-95 (Del. 1989).

In stockholder and fiduciary-duty class actions, the distinctions among the subdivisions of Rule 23(b) "are not well defined and not mutually exclusive," and Delaware courts have viewed actions challenging directors' fiduciary duties in connection with corporate transactions as properly certifiable under both Rule 23(b)(1) and Rule 23(b)(2). Under either, "certification of a mandatory (i.e., non-opt-out) class is appropriate," and the resulting decision is res judicata as to the entire class. Lawson Software, 2011 WL 2185613, at *2.

IV. ARGUMENT

A. The Proposed Class Satisfies Court of Chancery Rule 23(a)

1. Numerosity — Rule 23(a)(1)

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

☐ The proposed Class consists of approximately [________________________________] members [e.g., holders of [____] outstanding shares].
☐ Evidence supporting numerosity: [________________________________].
☐ Joinder is impracticable because: [________________________________].

2. Commonality — Rule 23(a)(2)

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

☐ Whether the defendants breached their fiduciary duties to the Class / engaged in [________________________________];
☐ Whether the challenged [transaction/conduct] was [entirely fair / lawful];
☐ Whether the Class was harmed and is entitled to relief;
☐ The appropriate measure of relief (e.g., damages, rescission, injunctive relief);
☐ [________________________________]

3. Typicality — Rule 23(a)(3)

Rule 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 conduct and legal theories as those of the Class:

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

4. Adequacy — Rule 23(a)(4)

Rule 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 Affidavit of [________________________________], Ex. [____].

b. Adequacy of Class Counsel. Proposed Class Counsel are experienced in Delaware class and stockholder litigation, have committed adequate resources, and will fairly and adequately represent the Class consistent with Court of Chancery Rule 23(d). See Affidavit of [________________________________], Ex. [____].

B. The Proposed Class Satisfies Court of Chancery Rule 23(b)(1) and/or (b)(2)

1. Rule 23(b)(1)

Prosecuting separate actions would create a risk of (A) inconsistent or varying adjudications establishing incompatible standards of conduct for the defendants, and/or (B) adjudications that, as a practical matter, would be dispositive of, or substantially impair, the interests of absent Class members. [________________________________]

2. Rule 23(b)(2)

The defendants acted or refused to act on grounds that apply generally to the Class, so that final injunctive or corresponding declaratory relief is appropriate respecting the Class as a whole. The equitable relief sought would benefit the entire Class if Plaintiff prevails. [________________________________]

For a mandatory class certified under Rule 23(b)(1) or (b)(2), notice and opt-out rights are within the Court's discretion. Lawson Software, 2011 WL 2185613, at *2-3.

C. Alternative: Certification Under Court of Chancery Rule 23(b)(3) (Predominance and Superiority)

In the alternative, or for any claims seeking predominantly money damages, Plaintiff seeks certification under Rule 23(b)(3) because common questions predominate over individual questions and a class action is superior to other available methods:

☐ Predominance: The defendants' conduct was uniform, and liability and [damages] can be established through common proof, including [________________________________];
☐ Superiority: Individual stakes are small relative to litigation costs; concentrating the litigation in this forum is desirable; the class is manageable; and [________________________________].

D. The Class Is Ascertainable

The proposed Class is defined by objective criteria and is ascertainable from [the Company's stock ledger / transfer agent records / Defendant's business records], including [________________________________]. Class membership does not depend on resolution of any merits question.

V. PROPOSED TRIAL PLAN AND CLASS NOTICE

A. Trial Plan

Plaintiff proposes to adjudicate the common liability questions on a classwide basis using the common evidence identified above, followed by [________________________________] for the determination of relief. A proposed plan is attached as Ex. [____].

B. Class Notice

For a class certified under Rule 23(b)(1) or (b)(2), the Court may direct appropriate notice in its discretion. For any class certified under Rule 23(b)(3), Plaintiff will provide the best notice practicable under the circumstances, including individual notice to members identifiable through reasonable effort, and the notice will advise members of the right to request exclusion and the binding effect of a class judgment. The proposed notice is attached as Ex. [____].

☐ Notice to record and beneficial holders through the Company's transfer agent and brokers/nominees;
☐ 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 Court of Chancery Rule 23(a) and Rule 23(b)(1) and/or (b)(2) [and/or (b)(3)], appoint Plaintiff as Class Representative, appoint the undersigned as Class Counsel, and direct any notice the Court deems appropriate.

DATED: [__/__/____]

Respectfully submitted,

[________________________________]
Attorneys for Plaintiff and the Proposed Class

By: [________________________________]
[Attorney Name] (Bar ID No. [________])
[Firm Name]
[Address]
[City, State ZIP]
Telephone: [________________________________]
Email: [________________________________]

EXHIBITS

☐ Exhibit A: Affidavit of [________________________________] (Proposed Class Representative)
☐ Exhibit B: Affidavit of [________________________________] (Class Counsel)
☐ Exhibit C: Representative-Party Affidavit (Ct. Ch. R. 23(aa))
☐ Exhibit D: Proposed Class Notice and Notice Plan
☐ Exhibit E: Proposed Trial Plan
☐ Exhibit F: [________________________________]

CERTIFICATE OF SERVICE

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

☐ File & ServeXpress / Court electronic filing system
☐ First-Class U.S. Mail
☐ Email

to the following:

[________________________________]
[________________________________]

[________________________________]
Signature

Delaware Practice Notes

• Forum and rule. Equitable class actions — including most stockholder, fiduciary-duty, and M&A disputes — proceed in the Court of Chancery under Court of Chancery Rule 23. Actions at law for money damages proceed in the Superior Court under Superior Court Civil Rule 23. Both rules are patterned on Federal Rule 23. Confirm the correct forum; the Court of Chancery requires a basis for equitable jurisdiction.
• Certification standard. Two-step analysis: Rule 23(a) prerequisites (numerosity, commonality, typicality, adequacy), then a Rule 23(b) category. In re Lawson Software, Inc. S'holder Litig., 2011 WL 2185613 (Del. Ch. May 27, 2011); Nottingham Partners v. Dana, 564 A.2d 1089 (Del. 1989).
• Stockholder classes are typically mandatory. Fiduciary-duty/transactional class actions are routinely certified under both Rule 23(b)(1) and (b)(2) as mandatory, non-opt-out classes; notice and opt-out are discretionary. Use (b)(3) where money damages predominate.
• Representative-party affidavit. Court of Chancery Rule 23(aa) requires a representative-party affidavit within 10 days of filing the complaint (no undisclosed compensation for serving as representative). Do not overlook this requirement.
• Interlocutory appeal. Delaware has no intermediate appellate court. Interlocutory appeal of a class-certification order lies to the Delaware Supreme Court under Supreme Court Rule 42, which requires that the order decide "a substantial issue of material importance" and that the Rule 42(b) factors favor review. Such appeals "should be exceptional, not routine." An application to certify the interlocutory appeal must be served and filed within 10 days of the order (Rule 42(c)(i)); the deadline is strictly enforced. See Edward S. Lampert v. Cannon Square, LLC, No. 111, 2025 (Del. Apr. 25, 2025) (refusing untimely application). The Supreme Court may accept or refuse the appeal regardless of the trial court's certification decision.
• Key cases. In re Lawson Software, Inc. S'holder Litig., 2011 WL 2185613 (Del. Ch. May 27, 2011) (two-step analysis; mandatory (b)(1)/(b)(2) class); Nottingham Partners v. Dana, 564 A.2d 1089 (Del. 1989); In re Celera Corp. S'holder Litig., 59 A.3d 418 (Del. 2012) (adequacy/typicality of representative in stockholder class).

Sources and References

• Del. Ct. Ch. R. 23 (Court of Chancery class actions)
• Del. Super. Ct. Civ. R. 23 (Superior Court class actions)
• Del. Supr. Ct. R. 42 (interlocutory appeals)
• In re Lawson Software, Inc. S'holder Litig., 2011 WL 2185613 (Del. Ch. May 27, 2011)
• Nottingham Partners v. Dana, 564 A.2d 1089 (Del. 1989)
• In re Celera Corp. S'holder Litig., 59 A.3d 418 (Del. 2012)
• Edward S. Lampert v. Cannon Square, LLC, No. 111, 2025 (Del. Apr. 25, 2025) (Rule 42 timeliness)
• Fed. R. Civ. P. 23 (persuasive)

This template is for informational purposes only and does not constitute legal advice. Delaware class certification practice — including the Chancery/Superior Court forum split, the Rule 23(aa) representative affidavit, and the strict Rule 42 interlocutory-appeal deadline — has traps for the unwary. Consult experienced Delaware class action counsel before filing.