Whether the Ninth Circuit's 'common course of conduct' test improperly dilutes Rule 23(b)(3)'s predominance requirement by ignoring differences among class members as to key elements of the claim

QUESTIONS PRESENTED In recent years, the Ninth Circuit has embraced a permissive approach to class actions that flouts Federal Rule of Civil Procedure 23 and this Court’s precedent, and makes class certification the norm rather than the exception. This case implicates two key features of that approach. First, the decision below announced a defendantfocused “common course of conduct” test for assessing predominance under Rule 23(b)(8). That test authorizes certification when the defendant makes the same allegedly fraudulent representations to all members of the class, while ignoring individualized issues bearing on essential elements of the claim, including materiality and reliance. Second, the decision applied the Ninth Circuit’s asymmetric abuse-of-discretion standard of appellate review, under which district court decisions certifying class actions are given “noticeably more deference” than decisions denying certification. On each issue, the Ninth Circuit’s approach sharply splits from other circuits and will attract forum-shopping plaintiffs seeking to certify sweeping, nationwide fraud class actions. The questions presented are: 1. Whether the Ninth Circuit’s “common course of conduct” test improperly dilutes Rule 23(b)(3)’s predominance requirement by ignoring differences among class members as to key elements of the claim. 2. Whether the Ninth Circuit’s asymmetric standard of review violates Rule 23 by giving district court rulings granting class certification “noticeably more deference” than rulings denying class certification.