Considerations in class certification.

• Author: Gonzalez, Ervin A.
• Position: Florida

Heightened interest in the class action is largely due to the overcrowded judicial system searching for more efficient ways to administer justice.

Rule 1.220 of the Florida Rules of Civil Procedure is perhaps the most conceptually complex rule of civil procedure. In essence, the rule allows a person or entity who has a claim or defense in common with others to represent the group. The class action is not a new mechanism. English common law provided for a similar equitable remedy known as a "bill of peace." Recently, interest in the class action has heightened. This is largely due to the increasingly overcrowded judicial system searching for more efficient ways to administer justice. Thus, the purpose of the class action focuses on judicial economy and access to justice. Long ago the Florida Supreme Court stated in Tenney v. City of Miami Beach, 11 So. 2d 188 (Fla. 1942): "[the purpose of a `class suit' is to save the multiplicity of suits, to reduce the expense of litigation, to make legal procedure more effective and expeditious, and to make available a remedy that would not otherwise exist."

Consequently, even though only one lone voice stands to protect and raise the rights of others, this is not reason to deny class certification and may be the reason to grant it.(1)

The foregoing benefits must be tempered against concerns of due process. Rule 1.220 provides for this protection.(2) This article addresses the principal issues associated with class certification.(3)

Class Certification--Factual Inquiry

Two principal questions arise with regard to the class certification process. First, whether an evidentiary hearing is required or advisable; and, second, what factual matters should be considered.

Rule 1.220 does not expressly require an evidentiary hearing. Nevertheless, an evidentiary hearing is generally required unless it is clear from the pleadings that class certification is appropriate. Barton-Malow Co. v. Bauer, 627 So. 2d 1233, 1235 (Fla. 2d DCA 1993). Failure to conduct an evidentiary hearing may constitute error. Id.

Federal interpretations of Rule 23 follow this approach. See generally Bradford v. Sears, Roebuck & Co., 673 F.2d 792 (5th Cir. 1982); Woodworkers v. Chesapeake Bay Plywood, 659 R2d 1259 (4th Cir. 1981). The Manual for Complex Litigation states that "[al]though the rule does not specifically require a hearing, one will generally be desirable; some courts have held that a hearing is required before denial of certification, and one may also be necessary where the factual basis for a class action is challenged."(4)

It is also important to understand what matters should, and should not, be considered at the class certification stage. At the class certification stage, the court should only determine whether the requirements of Rule 1.220 are met, and not consider the substantive merits of the claims or defenses. See generally Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 177-178 (1974). Thus, for purposes of class certification the court generally should accept the plaintiffs' substantive allegations as true. See In Re: Carbon Dioxide Antitrust Litigation, 149 F.R.D. 229 (M.D. Fla. 1993). Nevertheless, the court may look behind the pleadings and consider all facts and legal issues involved. CV Riet, Inc. v. Levy, 144 F.R.D. 690 (S.D. Fla. 1993); Brooks v. Southern Bell Tel. & Tel. Co., 133 F.R.D. 54 (S.D. Fla. 1990). In other words, the merit of the claims made or defenses is not an area for inquiry but the nature of the claims as they relate to the class certification requirements does require examination.

Class Certification Requirements

In order to certify a class, the court must determine whether a proposed class meets the requirements of Rule 1.220. Rule 1.220(a) sets forth the following four prerequisites that every class action must meet: numerosity; commonality; typicality; and adequacy of representation. In addition, the court must find that the proposed class falls into one of the following three requirements under Rule 1.220(b): limited fund/inconsistent standards, injunctive relief, or common predominance. The following discussion addresses prerequisites to class certification and the specific Rule 1.220(b) requirements.

Prerequisites to Class Certification

The proponent of the class certification must demonstrate numerosity, common issues, typicality of claims, and adequate representation. In Re: Amerifirst Securities Litigation, 139 F.R.D. 423 (S.D. Fla. 1991). Thus, the proponent of class certification bears the burden of making an affirmative showing that the prerequisites are met. See R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39 (Fla. 3d DCA 1996); Southern Bell Tel. & Tel. Co. v. Wilson, 305 So. 2d 302 (Fla. 3d DCA 1974).

* Numerosity. In order to satisfy the numerosity requirement, the class must be "so numerous that separate joinder of each member is impracticable." Rule 1.220(a)(1). As a threshold matter, the class must be sufficiently defined as to make it administratively feasible for the court to determine whether a particular person is a member. See Rodriguez v. U.S. Department of the Treasury, 131 F.R.D. 1, 7 (D.D.C. 1990). Note, however, that the proponent need not identify each member of the class at the outset. Holly v. City of Naples, 371 So. 2d 501 (Fla. 2d DCA 1979).

Generally, courts view the numerosity requirement liberally; "impracticable" does not mean "impossible."(5) Rather, the proponent of class...