Chapter § 5.02 Rule 23(a) Prerequisites for Class Certification

• Jurisdiction: United States
• Publication year: 2020

§ 5.02 Rule 23(a) Prerequisites for Class Certification

Class actions are an exception to the usual rule that litigation is conducted by and on behalf of the individual parties.² To justify this exception, every proposed class must satisfy four prerequisites under Federal Rule of Civil Procedure 23(a) and, as discussed in section 5.03, prove that the action fits into a category under Rule 23(b).³ The Rule 23(a) criteria are: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.⁴ The prerequisites are universally known, respectively, as numerosity, commonality, typicality, and adequacy. Most states have enacted rules of civil procedure establishing similar criteria to maintain a class action in their courts.⁵ Also, many courts impose an implicit Rule 23(a) requirement known as “ascertainability.”⁶ We discuss all of these requirements in detail below.

The Supreme Court indicated that Rule 23(a) does not set forth a mere pleading standard. Rather, a plaintiff seeking class certification must affirmatively demonstrate its compliance with each prong of Rule 23(a) by a preponderance of the evidence (i.e., the party must be prepared to prove that there are sufficiently numerous parties, common questions of law or fact, etc.). Furthermore, a court evaluating a motion for class certification is obligated to probe behind the pleadings when necessary and conduct a “rigorous analysis” to decide whether a plaintiff satisfied each of the Rule 23 certification requirements discussed below.⁷ Potential class counsel should confirm that a class meets the prerequisites before filing a class action, and defense counsel should generally challenge any class that does not meet them early in the lawsuit.

[1] Numerosity

Referring to the first prong of Rule 23(a)(1) as “numerosity” is somewhat of a misnomer. The rule is devoid of any numerical minimum for class certification.⁸ Rather, as noted above, it requires that “the class is so numerous that joinder of all members is impracticable.”⁹ In other words, the rule calls for courts to engage in a fact-based analysis as to the difficulties of achieving joinder, and class size is just one consideration. To be sure, there is no definite standard as to what size class satisfies Rule 23(a)(1).¹⁰ However, one commentator collecting cases found that, generally, classes numbering “fewer than 21 fail to meet the numerosity requirement,” classes with “more than 40 members” satisfy the requirement, and classes with “between 21 and 40 members are given varying treatment. These mid-sized classes may or may not meet the numerosity requirement depending on the circumstances of each particular case.”¹¹

While, in the past, numerosity had not generally been an onerous requirement to satisfy, it has been given “real teeth” in recent years.¹² This more stringent attention is largely due to the Supreme Court’s admonition in Wal-Mart Stores, Inc. v. Dukes¹³ that a “party seeking class certification must . . . be prepared to prove that there are in fact sufficiently numerous parties.” Since Dukes, courts have made clear that a party cannot rely on conclusory allegations that joinder is impractical or on speculation as to the size of the class to prove numerosity.¹⁴ Instead, a plaintiff must produce sufficient evidence to establish numerosity by a preponderance of the evidence.¹⁵ Furthermore, some courts have said that the inquiry into impracticability should be particularly rigorous when the putative class consists of fewer than 40 members.¹⁶

Courts consider a variety of factors when analyzing whether joinder is impracticable, including judicial economy arising from the avoidance of a multiplicity of actions; the geographic dispersion of class members; the size of each plaintiff’s claim; the financial resources of the class members; the ability of claimants to institute individual suits; and requests for prospective injunctive relief.¹⁷

[2] Commonality

Rule 23(a)(2) requires a plaintiff to establish that “there are questions of law or fact common to the class.”¹⁸ The Supreme Court recognized in Dukes that the text of Rule 23(a)(2) is “easy to misread, since ‘[a]ny competently crafted class complaint literally raises common questions.’ ”¹⁹ But a plaintiff’s mere recitation of questions that happen to be shared among class members is insufficient “to obtain class certification.”²⁰ Instead, commonality requires the plaintiff to demonstrate that the class members have suffered the same injury.²¹ This does not simply mean that the class members all suffered a violation of the same provision of law. The class members claims must “depend upon a common contention . . . of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”²²

The key to commonality is “not the raising of common ‘questions’ . . . . but, rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.”²³ The essential point is the need to have conduct common to members of the class.²⁴ Common answers will generally not lie where the defendant’s allegedly injurious conduct differs from plaintiff to plaintiff.²⁵ But, where the same conduct or practice by the same defendant gives rise to the same kind of claims from all class members, there may be a common question.²⁶

[3] Typicality

Rule 23(a)(3) requires plaintiffs to establish that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.”²⁷ The Supreme Court explained in Dukes that the...