Class certification challenges frequently focus on what might be called the group dynamic elements of Rule 23: commonality, typicality, and predominance. Now, with the Seventh Circuit Court of Appeals' decision in Creative Montessori Learning Centers v. Ashford Gear, LLC, No. 11-8020 (7th Cir. Nov. 22, 2011), parties opposing class certification—at least within the Seventh Circuit—might shift their gaze to another possible basis for challenging class certification: the adequacy of class counsel.
The district court certified a plaintiff class in an action brought under the Telephone Consumer Protection Act (TCPA), as amended by the Junk Fax Prevention Act of 2005. The defendant sought leave to appeal under Fed. R. Civ. P. 23(f), the Seventh Circuit assumed jurisdiction, and, in a unanimous opinion, it vacated the certification order and remanded with instructions.