Two Many Steps: What is the Test for Establishing a Common Issue?

Courts have split on the test for certifying a common issue. Some courts have held that the plaintiff only needs to show that there is a basis in fact that a question is common to all class members (the “One-Step Test”). Others have held that the plaintiff must also show that there is a basis in fact that the question “exists” (the “Two-Step Test”).

This article starts by assessing how these tests differ, arguing that they are not that dissimilar. In most cases, satisfying one test will also satisfy the other. This article then looks at three recent decisions on this issue, showing that the choice of test would have made little difference.