Chapter 10 - § 10.1 • RULE 23 CLASS ACTION CERTIFICATION REQUIREMENTS

• Jurisdiction: Colorado

§ 10.1 • RULE 23 CLASS ACTION CERTIFICATION REQUIREMENTS

Despite many courts' reluctance to certify class actions, in the proper case such actions serve the twin pillars of justice and economy underlying C.R.C.P. 23. Class actions often allow class members to share litigation costs, rendering pursuit of their claims economical and feasible. A single class action can preserve judicial resources compared to multiple, separate lawsuits arising from the same common nucleus of facts.

Settling a class action requires court approval, including approval of attorney fees.¹² F.R.C.P. 23, governing class actions in federal court, was significantly amended effective December 1, 2003.

Generally, C.R.C.P. 23(a) requires the representative plaintiff(s) to establish, before a class may be certified, that: (1) the class is so numerous that joinder of all members is impracticable (numerosity); (2) there are questions of law or fact common to the class (commonality); (3) the claims or defenses of the representative plaintiff(s) are typical of those of the class (typicality); and (4) the representative plaintiff(s) and his or her counsel will fairly and adequately protect the interests of the class (adequacy).¹³

After certification, to maintain a class action, C.R.C.P. 23(b) requires the representative plaintiff(s) to continue to satisfy C.R.C.P. 23(a)'s prerequisites, and also to show:

1) Prosecution of separate actions by individual class members would create a risk of either (a) inconsistent or varying individual adjudications, that would create incompatible standards of conduct for the party opposing the class, or (b) individual adjudication that would dispose of the interests of absent individuals or impair their ability to protect their interests;
2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, making injunctive or declaratory relief with respect to the class as a whole appropriate; or
3) Common questions of law or fact predominate over any questions affecting only individual members (predominance), and a class action is superior to any other available method of adjudicating the controversy (superiority).¹⁴

When analyzing the predominance and superiority of a class action, the court must consider: (1) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against members of the...