## Facts

- Kaplan, as administrator of his deceased wife’s estate, brought a securities-fraud putative class action based on his wife’s purchase of 50 shares of Gaylord stock.
- The court previously certified a class as to two counts and appointed Kaplan as class representative.
- During discovery focused on class issues, Kaplan was deposed about the estate’s assets, his wife’s investments, and his own litigation history.
- In deposition testimony, Kaplan indicated the estate’s assets consisted of the 50 shares of Gaylord stock and suggested he did not know of any other securities his wife held; his counsel objected and directed him not to answer questions about other stocks.
- After certification, defendants obtained evidence that Kaplan’s wife owned other stocks and securities and that Kaplan had misrepresented his involvement in other lawsuits.
- Defendants moved to decertify, arguing Kaplan’s false testimony created serious credibility problems and made him an inadequate and atypical representative under Rule 23(a).
- Kaplan argued any inaccuracies were minor and that adequacy turns primarily on class counsel’s competence and the absence of conflicts with the class.

## Issues

1. Whether a court may revisit and revoke a prior class certification when post-certification evidence shows the named representative gave false deposition testimony.
2. Whether false testimony about the representative’s litigation history and the decedent’s other stock holdings defeats Rule 23(a) adequacy of representation.
3. Whether such credibility problems subject the representative to unique defenses that defeat Rule 23(a) typicality.

## Decision

- The court granted defendants’ motion to decertify the class.
- The court held class certification is tentative and may be altered or amended before final judgment when Rule 23’s requirements are no longer met.
- The court found Kaplan’s false and misleading deposition testimony showed a willingness to mislead, undermining his credibility and integrity.
- The court concluded Kaplan could not fairly and adequately protect absent class members because his credibility would become a central dispute.
- The court further held the false testimony created unique credibility-based defenses and issues, rendering Kaplan’s claims atypical of the class.

## Legal Principles

- A district court has a continuing obligation to reassess compliance with Federal Rule of Civil Procedure 23 and may decertify a class when later-developed facts show the class no longer satisfies Rule 23.
- Rule 23(a)(4) adequacy includes the named representative’s honesty and credibility, not only counsel’s competence and the absence of conflicts.
- A class representative whose testimony is impeachable by evidence of intentional falsehood may be inadequate because credibility disputes can distract from the class claims and prejudice absent members.
- Rule 23(a)(3) typicality is not satisfied when the representative is subject to unique defenses or issues—such as credibility-based defenses—likely to become the focus of the litigation.

## Conclusion

The court decertified the securities-fraud class because post-certification evidence that the named representative gave false deposition testimony created serious credibility concerns that defeated Rule 23(a) adequacy and typicality, requiring withdrawal of the prior certification order.


Kaplan v. Pomerantz, 132 F.R.D. 504 (N.D. Ill. 1990)