Class Action Certification Under C.r.c.p. 23: Procedural and Evidentiary Considerations
| Publication year | 2010 |
| Pages | 29 |
| Citation | Vol. 39 No. 6 Pg. 29 |
2010, June, Pg. 29. Class Action Certification Under C.R.C.P. 23: Procedural and Evidentiary Considerations
June 2010
Vol. 39, No. 6 [Page 29]
The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.
Coordinating Editors
Donald Kelso, Denver, of Holme Roberts and Owen LLP-(303) 861-7000, donald.kels@hro.com; Eric Bentley, Colorado Springs, of Flynn Wright and Fredman LLC-(719) 578-8444, ebentley@fwflegal.com
About the Author
Philip E. Kay is an associate with Fleishman and Shapiro, P.C. in Denver and focuses his practice on complex civil litigation-pkay@colorado-law.net.
This article examines the prerequisites for bringing a class action in Colorado and discusses procedural and evidentiary considerations attendant to class action certification.
Class actions are designed to unify and render manageable litigation involving numerous members of a homogeneous class.(fn1) Class actions provide an economical means of disposing of multiple claims in one lawsuit and are a favored mechanism in Colorado for managing lawsuits involving large numbers of persons with similar interests and common issues of law or fact.(fn2)
Colorado Rule of Civil Procedure (C.R.C.P. or Rule) 23 sets forth the procedures governing class actions in Colorado. As soon as practicable after the commencement of an action brought as a class action, the court must determine by order whether the action is to be maintained as a class action or whether the proposed class members will be required to individually litigate their claims or defenses.(fn3) A determination by the court that the action may proceed as a class action is known as "class action certification." A court may certify an action as a class action only if the proposed class representative shows by a preponderance of the evidence that the action satisfies all four prerequisites of C.R.C.P. 23(a) and the additional requirements of one of the three subsections of C.R.C.P. 23(b).(fn4)
This article examines the specific requirements of C.R.C.P. 23(a) and (b). It also discusses procedural and evidentiary issues relating to class action certifciation and appeal of a certification order.
Prerequisites to a Class Action Certification
C.R.C.P. 23(a) lists four core prerequisites that must be satisfied for an action to be certified as a class action: numerosity, commonality, typicality, and adequacy of representation. The proposed class representative must prove by a preponderance of the evidence that the action satisfies all four prerequisites.(fn5)
Numerosity
The potential class must be so numerous that joinder of all members would be impracticable.(fn6) For the court to make this determination, the class representative must sufficiently define the class so the class members can be identified.(fn7) However, the class need not be so ascertainable that every potential member can be identified at the commencement of the action;(fn8) rather, the class definition must be precise enough to allow the court to determine whether a particular individual fits within it.(fn9)
"Numerous" is not defined in the rule and there is no set minimum number of class members required to satisfy this requirement.(fn10) Courts have granted class certification to groups of fewer than thirty members and denied class certification to groups of more than 100 members.(fn11) Although the class representative need not prove the exact number of class members, he or she must show that the class is large enough to make joinder impracticable.(fn12) This showing must be based on competent evidence and cannot be based on speculation.(fn13) However, the numerosity requirement is satisfied where the exact size of the class is unknown but general knowledge and common sense indicate that it is large.(fn14)
The word "impracticable" as used in Rule 23 means difficult or impractical rather than impossible. When determining impracticability, the court should consider factors such as the size of the class, the geographic dispersion of the class members, the nature of the relief sought, and the practicality of forcing relitigation of common issues.(fn15)
The class representative must allege and show that he or she personally suffered injury; it is not necessary to allege or show that each other member of the proposed class suffered injury.(fn16) However, the court may deny class certification if common sense dictates that very few people in the proposed class suffered any injury.(fn17)
Commonality
There must be questions of law or fact common to the class.(fn18) This does not mean that every issue must be common to the class; rather, the claims of the class representative and other class members must be based on the same legal or remedial theory,(fn19) or arise from the same set of broad circumstances.(fn20)
Typicality
The claims or defenses of the class representative must be typical of the claims or defenses of the class.(fn21) The typicality analysis involves a comparison between the claims and defenses of the class representative and those of the other class members,(fn22) and seeks to ensure that all of the class members' claims and defenses will be fully presented in the action.(fn23) There may be some variation in the facts that underlie each class member's individual claims and the class members may be entitled to different damages; however, to establish typicality, the class representative must show that there is identical unlawful conduct that has been directed at both the class representative and the proposed class members.(fn24) If the class representative has considerations that are unique and may be dispositive of the action, typicality may be lacking.(fn25)
Adequacy of Representation
The class representative must fairly and adequately protect the interests of the class.(fn26) In making this determination, the court should ascertain whether the class representative will advance the interests of the class, has any conflict with the other class members, and is represented by competent and experienced counsel.(fn27) To defeat certification on conflict grounds, the conflict must be substantial and consist of more than a mere difference in the amount of damages claimed between the class representative and the other class members.(fn28)
Types of Class Actions Maintainable
If the class representative fails to satisfy all four prerequisites of C.R.C.P. 23(a), the inquiry stops and the court must deny class certification.(fn29) If the class representative satisfies all four prerequisites of Rule 23(a), he or she must show that the action fits into one of the categories described in C.R.C.P. 23(b).
Separate Actions Would Create Risk of Incompatible Standards of Conduct
The first category, set forth at C.R.C.P. 23(b)(1)(A), applies to...
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