Class Actions in Delaware in DE — Business Law Legal… | CGMIMM
Business Law · DE
Class Actions in Delaware
Delaware class actions follow Federal Rule 23 (or state equivalent) — class certification is the critical battle, with numerosity, commonality, typicality, and adequacy required.
Published May 9, 2026
## Class actions in Delaware
**Class actions** allow one or more plaintiffs to sue on behalf of a larger group with similar claims. They're powerful tools for consumer + employment + securities cases — but face strict procedural requirements.
## Federal Rule 23 — the framework
**Class certification requirements (4 prerequisites):**
**1. Numerosity:**
- Class so numerous that joinder impracticable
- Typically 40+ members
- No bright-line rule
- Geographic dispersion considered
**2. Commonality:**
- Common questions of law / fact
- Wal-Mart v. Dukes (2011) tightened standard
- Common contention capable of classwide resolution
- One "glue" question often enough
**3. Typicality:**
- Class representative claims typical of class
- Same legal theory
- Same factual pattern
- Different damage amounts OK
**4. Adequacy:**
- Class representative will fairly + adequately protect class
- No conflicts with class members
- Competent counsel
- Sufficient resources
## Plus one of three Rule 23(b) categories
**Rule 23(b)(1):**
- Risk of inconsistent adjudications
- Or impair non-class members
- Limited fund cases
- Less common
**Rule 23(b)(2):**
- Injunctive relief class
- Class-wide remedy
- Civil rights cases
- Limited monetary relief
- Common in employment cases
**Rule 23(b)(3) — "damages class" (most common):**
- Common questions PREDOMINATE over individual
- Class action SUPERIOR to other methods
- Notice + opt-out rights to class
- Most consumer class actions
## Predominance + superiority — the battle
**Predominance:**
- Common issues outweigh individual issues
- Damages calculations often dispute
- Comcast v. Behrend (2013) — damages must be susceptible to common proof
**Superiority:**
- Class action better than alternatives
- Manageability concerns
- Choice-of-law issues
- Difficulties listed in Rule 23(b)(3)(D)
## Common types of class actions
**Consumer class actions:**
- False advertising
- Defective products
- Privacy violations (TCPA, BIPA, CCPA)
- Data breaches
- Pricing practices
- Service quality
**Employment class actions:**
- Wage + hour violations
- Discrimination patterns
- ERISA claims
- Misclassification
- Off-the-clock work
**Securities class actions:**
- Federal securities laws
- Misrepresentation in offerings
- Insider trading impact
- Specific procedures (PSLRA)
- Lead plaintiff procedures
**Antitrust class actions:**
- Price-fixing
- Monopolization
- Indirect purchaser claims (Illinois Brick)
- Federal + state laws
**Civil rights class actions:**
- Discrimination patterns
- Constitutional violations
- Voting rights
- Disability access
## State class actions
**${s.name} state-court class actions:**
- Often parallel federal Rule 23
- Some states modified
- ${s.name}-specific procedures
- Different strategic considerations
- State law differences in remedies
## Key procedural milestones
**1. Complaint + class allegations:**
- Define proposed class
- Detail claims
- Specific factual allegations
- Class representatives identified
**2. Discovery:**
- Class certification discovery
- Sometimes "phased" with merits
- Damages model development
- Class size + composition
**3. Class certification motion:**
- THE critical battle
- Plaintiff's burden
- Comprehensive briefing
- Often determines outcome
**4. Notice to class:**
- After certification
- Reasonable methods
- Opt-out rights
- Specific contents required
**5. Settlement / trial:**
- Settlement requires court approval
- Fairness hearing
- Class member objections
- Trial rare in class actions
## Class Action Fairness Act (CAFA, 2005)
**Federal jurisdiction expanded:**
- Diversity jurisdiction expanded
- $5M+ aggregate amount
- Minimal diversity (1+ class member from different state than 1+ defendant)
- 100+ class members
- Most large class actions in federal court now
**Effect:**
- Forum-shopping reduced
- More uniform treatment
- Federal procedures + appeals
- Specific notice + settlement requirements
## Settlement structures
**Common class settlement features:**
**Cash:**
- Per-class-member payments
- Tiered (based on damages)
- Total settlement fund
- Often most valuable to lawyers
**Coupons / vouchers:**
- Less valuable to class
- CAFA scrutiny increased
- Sometimes appropriate (small claims)
**Injunctive relief:**
- Practice changes
- Often most valuable in employment / civil rights
- Hard to value monetarily
**Future benefits:**
- Extended warranties
- Discounts on future services
- Less valuable than cash
## Attorney's fees
**Common fee structures:**
- Common-fund percentage (25-35% typical)
- Lodestar (hourly × multiplier)
- Court-approved
- Specific scrutiny in CAFA cases
- Class-member objections to fees
## Class members' rights
**Opt-out:**
- Right to exclude self from class (Rule 23(b)(3))
- Specific procedures + deadlines
- Then can pursue individual case
- Or do nothing (lose claims)
**Object:**
- Object to settlement
- File written objections
- Appear at fairness hearing
- Court considers
**Opt-in:**
- For (b)(2) classes (injunctive)
- For some specific statutes (FLSA collective)
- Different mechanism
## Defenses for businesses
**Common defenses:**
**1. Class certification challenge:**
- Most important battle
- Win = effectively eliminate class case
- Specific arguments per element
- Comcast damages issues
- Wal-Mart commonality
**2. Arbitration clauses:**
- Force individual arbitration
- Class-action waivers
- AT&T v. Concepcion enforcement
- Significant defensive tool
**3. Standing challenges:**
- Article III standing
- Concrete injury required
- Spokeo v. Robins (2016) implications
- Limited some statutory cases
**4. Choice-of-law issues:**
- Different state laws apply
- Manageability problem
- Defeats predominance
- Multi-state class actions
**5. Individualized issues:**
- Damage calculations differ
- Reliance individual
- Causation individual
- Liability defenses individual
**6. Settlement strategy:**
- Pick off class representatives
- Mass arbitration response
- Strategic offer of judgment
- Mootness issues
## Recent developments
**Trends:**
- Increasing arbitration enforcement
- Mass arbitration response
- Tougher certification standards
- Specific industry focus (data, privacy, AI)
- BIPA biometric class actions (Illinois)
- TCPA continuing focus
- Privacy law expansion (CCPA, state laws)
**Notable rulings:**
- TransUnion v. Ramirez (2021) — concrete injury
- Cassirer v. Thyssen-Bornemisza (2022) — choice of law
- Ongoing Supreme Court attention
## Public-policy considerations
**For plaintiffs:**
- Aggregation + economies of scale
- Otherwise unrecoverable claims
- Behavior change for defendants
- Access to justice
**For defendants:**
- Crushing exposure
- Settlement pressure
- High costs
- Sometimes meritless cases
- Reputational damage
## What you should do
If you have potential class action claims in Delaware: consult a class-action attorney to evaluate certifiability + lead plaintiff opportunities. If your business faces class action: hire experienced defense counsel immediately — class certification is the critical battle. Most major Delaware firms handle class actions; some specialize as plaintiff or defense. Both sides expensive ($100K-$10M+ for full case).
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*This guide is general information about federal + Delaware law as of mid-2026 and is not legal advice. Class actions are highly technical. Talk to a licensed Delaware attorney about your specific situation.*
This guide is for general information only and does not constitute legal advice. Laws change and outcomes depend on your specific situation — talk to a licensed attorney before acting on anything you read here.