Chapter 7:
Class Actions
III. Rule 23 Class Certification Requirements
Rule 23(a) and (b) of the Federal Rules of Civil Procedure govern class certification. Rule 23(a) sets forth four requirements for class certification, each of which must be met: (1) the class is so numerous that joinder of class members is impracticable (numerosity); (2) there are questions of law or fact common to the class (commonality); (3) the claims or defenses of the class representatives are typical of those of the class (typicality); and (4) the class representatives will fairly and adequately protect the interests of the class (adequacy).
Rule 23(b) sets forth three additional, but alternative, requirements, only one of which must be met: (1) that prosecution of separate actions risks either inconsistent adjudications which would establish incompatible standards of conduct for the defendant or would as a practical matter be dispositive of the interests of others; (2) that defendants have acted or refused to act on grounds generally applicable to the class (b)(2); or (3) that there are common questions of law or fact that predominate over any individual class member’s questions and that a class action is superior to other methods of adjudication.
Before filing a case as a class action, counsel should analyze how the case meets each of the Rule 23(a) requirements and which prong(s) of Rule 23(b) are met. The complaint should plead specifically each of the Rule 23 requirements rather than merely parrot the language of Rule 23. Indeed, many local rules require that class action allegations contain specific information regarding the class, such as an estimate of the number of persons in the class./22/
In addition to Rule 23(a) and (b), the courts have added implicit requirements for class certification. The courts require (1) that a definable class exists, (2) the named representatives are members of that class, and (3) the claim of the class is live, not moot. These will be discussed below as well.
In determining whether to grant class certification, a court’s analysis of the requirements of Rule 23(a) and (b) is described as rigorous./23/ However, courts are not to consider the merits of the plaintiff’s underlying claim in the analysis./24/ The plaintiff has the burden of proving that the requirements of Rule 23 are met. /25/ The standard of review of the district court’s decision to certify or deny certification of the class is “abuse of discretion.”/26/ A court abuses its discretion if its certification order is premised on legal error./27/ At least one court is less deferential to the denial of certifications than it is to the granting of them./28/
A. Rule 23(a) Requirements
The four preliminary requirements for class certification–numerosity, commonality, typicality and adequacy of representation–must all be met.
1. Numerosity
The numerosity requirement of Rule 23 does not focus exclusively on numbers but on the impracticality of individual joinder./29/ The courts generally apply no strict numerical test for determining impracticality of joinder. Rather, courts must examine the specific facts of each case./30/
Although a large number of putative class members may suffice to prove numerosity, other factors are considered in determining whether joinder is impracticable./31/ These factors include the ease of identifying individual class members, geographical disbursement, fluid composition of class population, size of individual claims, individual ability to bring separate actions, and the nature of the claims raised and relief sought./32/
In some cases, class size may be proven by appending to the motion for class certification public documents, census data, or responses to Freedom of Information Act requests. In other cases, affidavits can establish the numbers in the class. If plaintiffs lack information regarding the size of the class, consideration should be given to filing a discovery request at the same time or soon after the filing of the complaint; this may lead to a stipulation on numerosity. If the exact number of class members cannot be proven, the court can draw inferences about the class size./33/ If the size and impracticality of joinder appear to be a problem in a given case, adjusting the class definition may resolve the issue by, for example, eliminating subclasses (each subclass must independently meet the numerosity requirements) or including persons who will be affected in the future./34/
2. Commonality
Plaintiffs’ grievances generally must share a common question of law or fact./35/ Rule 23 does not require that all questions of law or all questions of fact be common to all class members./36/ In fact, several circuits require that only one question of law or fact must be common to the proposed class./37/ Other circuits require two./38/ Relief requiring individual determinations does not defeat class certification./39/
3. Typicality
While the commonality requirement focuses on the common thread among all class members, the typicality requirement focuses on the named plaintiff. In the leading case in this area, General Telephone Company of the Southwest v. Falcon, the U.S. Supreme Court held that the class representative had to “possess the same interest and suffer the same injury as the class members.”/40/ The typicality requirement centers on “whether the class representative’s claims have the same essential characteristics of those of the putative class. If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality.”/41/ Put another way, typicality can be measured by whether there is a sufficient nexus between the claims of the named representatives and those of the class./42/ As with commonality, factual differences do not defeat typicality if the course of conduct and the claims are based on the same legal theory./43/ Typicality can be satisfied only if the named plaintiffs have standing to bring the claim./44/
4. Adequacy of Representation—Class Representatives and Counsel
Rule 23 (a)(4) requires a class representative to represent fairly and adequately the interests of absent class members. As with other aspects of Rule 23, due process governs the determination of adequacy of representation./45/ By assuring adequacy of representation, Rule 23 permits class judgments to bind absent class members./46/ The requirement of adequate representation applies to both the plaintiffs and counsel. The 2003 Amendments adding subsection (g) to Rule 23 have changed somewhat the inquiry into adequate representation of counsel.
First, the court asks whether the named plaintiffs will serve as adequate class representatives. By separating the inquiry into adequacy of representation from the issues of commonality and typicality, the rule requires a critical assessment of issues on which the named plaintiffs and any part of the class might disagree./47/ Class certification is improper when the interests of the representative party and the class conflict. In a leading Supreme Court case in this area, a class was decertified upon a finding that the claims of the named representatives were not aligned with those of the other class members. In that case, putative class members were all exposed to asbestos, but many members suffered injuries completely different than those suffered by other class members./48/ Defendants often attempt to defeat class certification by making allegations of antagonistic interests between the named representatives and the remainder of the class./49/
Conflicts can usually be averted by counsel vigilantly assessing all interests involved on a regular basis, informing the court of any potential conflicts when they arise, and asking the court to certify subclasses and appoint independent counsel to represent the varying interests in the conflict./50/ In addition, a judge may order notice to all class members informing them of the right to intervene to oppose the named plaintiff’s position./51/ Or, the court may define the class in a more limited way to avoid conflicts./52/
In addition to showing a lack of conflict with class members, the named plaintiff must also evidence a willingness to prosecute the class claims actively. Thus, in a case in which the named plaintiff failed to file for class certification for two and a half years, the court found that she failed to protect the interests of the proposed class./53/ Adequate representation by the named plaintiff generally should not, however, include an assessment of plaintiff’s financial resources, unless lack of financial resources is relevant to the named plaintiff’s willingness or ability to fund the litigation or represent the class./54/
When evaluating adequate representation of counsel, zeal and competency of counsel are important factors. Zeal and competency of counsel for the class are initially determined on the basis of the experience of the lawyer or the legal organization for whom the lawyer works and the quality of initial pleadings./55/ For example, failing to move promptly for class certification could be viewed as evidence of lack of adequate class representation./56/
Sometimes the court examines the conduct of counsel in other class actions to determine if the representation is adequate./57/ Having more than one counsel in class actions is advisable as a rule. If one has not handled a class action before then co-counseling with experienced counsel is necessary. Although an initial determination of counsel’s adequacy to represent the class aggressively is necessary to certify the class, the court has flexibility to decertify the class later based on evidence of inadequate representation in discovery./58/
The 2003 amendments to Rule 23 added subsection (g), which requires the court to appoint class counsel and now explicitly mandates that counsel fairly and adequately represent the class. Rule 23(g)(1)(c) lists the factors that the court must consider in appointing class counsel. They include pre-filing investigation, experience, knowledge of law, and resources that counsel will commit to representing the class./59/
B. Implicit Requirements
The courts have added some “implicit” requirements for the putative class to meet in order to obtain class certification: (1) a definable class exists, (2) the named representatives are members of that class, and (3) the claim of the class is live, not moot.
1. Existence of a Definable Class
In order to obtain certification, a class must be sufficiently definable. The court must determine that defining the class is both possible and feasible. This means that a court must be able to identify all members of the class by using objective criteria./60/ If a class is defined in terms of vague or subjective criteria, such as the members’ states of mind, the court has no objective means with which to identify the members of the class and therefore will not certify the class./61/ Even if the class is defined in terms of objective criteria, those criteria may be too difficult for the court to apply to ascertain that class definition is possible but not feasible. If class definition is not feasible, the court may refuse to certify the class./62/
If a class is so broad that it includes members who would not have standing to bring an action individually, the court will not certify the class. For example, in an action by Latino inmates against a prison for not providing Spanish-speaking staff, the court would not certify a class comprised of all of the Latino inmates. This is because some of those Latino inmates speak English and would not have suffered any injury and thus do not have standing to sue. Such a class would be overbroad and would include members without standing to sue./63/
Although members of a class must be easily identifiable for the court, a class may be certified even though the court cannot identify every potential member of the class at the moment of certification. Thus, a class may obtain certification even if it is of such a nature that it will inevitably need to add or drop members during the course of the action./64/
Upon finding that a class is not sufficiently definable, the court may limit or redefine the class using its authority under Rule 23(c)(4),/65/ or it can strike the class allegations and allow the named members to proceed individually./66/ A precisely defined class is necessary because a court must know the exact identity of the class in order to analyze whether that class meets the other requirements for certification under Rule 23. Further, a court must have a precise class definition in order to be able to determine which individuals are entitled to notice or relief as well as which individuals will be bound by a judgment.
2. Class Representatives Must Be Part of the Defined Class
In order to obtain certification, the named representatives must be class members. That is, each named representative must have proper standing and must have the same interest and injury as other members of the class. For example, plaintiffs in an employment discrimination suit would need to be qualified for the job positions at issue in order to act as named representatives of the people against whom an employer has allegedly discriminated./67/
A problem for courts applying the named representative requirement is whether an association may act as the named representative of a class comprised of the members of the association. Some courts find that, since the association is not requesting any relief for itself, it is not a member of a class comprised of its members./68/ An exception to this rule, “associational standing,” exists for associations that have the authority to protect their members’ interests, if the case does not require the participation of individual members or consideration of individualized interests to resolve the claim./69/ The Eighth Circuit took a similar approach in a school desegregation case. There, potential individual class members feared reprisal requiring a “liberal evaluation” approach to associational standing. The court found that if an entity has standing to sue and is a real party in interest under Rule 17(a), that entity should not be dismissed from the action even if it is not an individual member of the class./70/ Whether a named representative is a member of a class is very fact-specific and courts vary in the strictness of the application of the requirement./71/
3. A Live Claim
In order for the class to obtain certification, courts require a claim to be live, not moot. If it is not a live claim, the court will dismiss the suit unless a new class representative with a live claim steps forward. However, under certain circumstances, an individual with a moot claim may still serve as a class representative. For example, if a class representative’s claim becomes moot after a class is certified, the entire class action does not become moot as a result./72/ If the court denies class certification and the named representative’s claim later becomes moot, the class representative may still appeal the denial of certification./73/
An individual whose claim is moot may also serve as a class representative if the individual’s claim is “capable of repetition yet evading review.” In such cases an individual with a moot claim may serve as a class representative even if the claim became moot before class certification./74/
C. Rule 23(b) Requirements
In addition to meeting all four Rule 23(a) requirements, a class action must meet one of the three requirements of Rule 23(b).
1. Rule 23(b)(1) Classes
A Rule 23(b)(1)(A) action is intended to protect the defendants from inconsistent adjudication that might result from independent actions brought by individual plaintiffs. The Advisory Committee explained:
To illustrate: Separate actions by individuals against a municipality to declare a bond issue invalid or condition or limit it, to prevent or limit the making of a particular appropriation or to compel or invalidate an assessment, might create a risk of inconsistent or varying determinations. In the same way, individual litigations of the rights and duties of riparian owners, or of landowners’ rights and duties respecting a claimed nuisance, could create a possibility of incompatible adjudications. Actions by or against a class provide a remedy and fair means of achieving unitary adjudication./75/
Generally, the prospect of inconsistent injunctive relief satisfies this rule while the possibility of varying monetary awards does not./76/
By contrast, a Rule 23(b)(1)(B) action is designed to protect absent class members from litigation that could impair “their ability to protect their interests.” The Advisory Committee explained that:
In various situations an adjudication as to one or more members of the class will necessarily or probably have an adverse practical effect on the interests of other members who should therefore be represented in the lawsuit. This is plainly the case when claims are made by numerous persons against a fund insufficient to satisfy all claims. A class action by or against representative members to settle the validity of the claims as a whole, or in groups, followed by separate proof of the amount of each valid claim and proportionate distribution of the fund, meets the problem./77/
The Supreme Court’s most recent word on Federal Rule of Civil Procedure 23(b)(1)(B) class actions in the limited fund context is Ortiz v. Fibreboard Corporation./78/ The Court rejected the (b)(1)(B) class in a manner suggesting added rigor in exploiting this device: “[T]he shared character of rights claimed or relief awarded entails that any individual adjudication by a class member disposes of, or substantially affects, the interests of absent class members.”/79/
2. Rule 23(b)(2) Classes
Class certification under Rule 23(b)(2) is far more common and the traditional class action tool for poverty lawyers. For an example of a motion to certify a Rule 23(b)(2) class and resulting Opinion, see Documents 6 and 7 in the Documentary Supplement. Under Rule 23(b)(2), the class must show that the defendant acted in a way “generally applicable” to class members, making classwide declaratory and injunctive relief appropriate. As with the commonality requirement of Rule 23(a), factual differences between the named plaintiffs and class members requiring individualized relief following the classwide injunctive relief do not defeat certification./80/
In requesting Rule 23(b)(2) certification for injunctive relief, the named plaintiffs must have standing for each type of relief requested./81/ Thus, when a named plaintiff does not have standing to seek injunctive relief, Rule 23(b)(2) class certification is denied./82/ Although Rule 23(b)(2) specifically refers to declaratory and injunctive relief as its remedy, many courts rule that damages or retroactive relief that is collateral to the requested injunctive relief is also appropriate for (b)(2) classes./83/
Rule 23(b)(2) class members require no notice/84/ and have no opt-out rights. Consequently, in a case where compensatory damages as well as injunctive or declaratory relief are sought, it is important to ask whether the injunctive or declaratory relief predominates the monetary relief.
This is particularly significant in employment discrimination cases. Since the 1991 amendments to the Civil Rights Act, Title VII plaintiffs have been permitted to recover compensatory damages./85/ These damages include relief for a wide range of losses including future pecuniary losses, emotional pain, suffering, nonpecuniary damages (Section 1981a(b)(3)); and punitive damages (Section 1981a(b)(1)(2)). Allison v. Citgo Petroleum Corp. was the first case to address the effect these statutory changes had on the utilization of Rule 23./86/ The court there held that compensatory relief was not incidental in Title VII cases, and class certification under Rule 23(b)(2) was therefore not appropriate. /87/Further, according to the court, the individualized nature of determining compensatory and punitive damages “detracts from the superiority of the class action device in resolving these claims.”/88/ Other courts have disagreed with Allison./89/
3. Rule 23(b)(3) Classes
Rule 23 requires certification under subdivision (b)(3) when the primary relief sought is damages. In such a case, Rule 23(b)(3) requires that the common questions of law and fact predominate over any individual questions and that a class action be superior to other methods for fair and efficient resolution of the conflict./90/ The district court has broad discretion in determining whether common questions predominate and whether a class action is manageable.
Rule 23(b)(3) class actions are expensive and time-consuming, requiring notice to all class members;/91/ opportunity for opt-out; more expensive and extensive discovery; and individual representation post-judgment. As such, any office should carefully consider the resources required for litigation before undertaking representation of a Rule 23(b)(3) class. Whenever possible, certification should be sought under subdivision (b)(1) or (b)(2).
22. E.g., L.R. 23.1 (A)(2) (N.D. Fla.) and L.R. 23.1 (b)(2)(A) (E.D. Pa.). Local rules may also have other specific and/or additional requirements regarding class actions.
23. General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982). See also Baffa v. Donaldson, Lufkin and Jenrette Sec. Corp., 222 F.3d 52, 58 (2d Cir. 2000).
24. Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177-78 (1974). See also Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 723 (11th Cir. 1987) (reversing denial of certification in part because rejection of class “was based upon nothing other than the court’s assessment of the plaintiffs’ likelihood of success…. This is an improper basis for deciding the propriety of a class action.”). But see Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (class determination generally involves considerations that are “enmeshed in the factual and legal issues comprising the plaintiff’s cause of action”).
25. Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002).
26. Paton v. N. M. Highlands Univ., 275 F.3d 1274, 1277 (10th Cir. 2002); See also Amchem Prods. v. Windsor, 521 U.S. 591, 630 (1997) (Breyer, J., dissenting).
27. Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1237 (9th Cir. 2001).
28. Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999).
29. “Numerosity” is the term generally used to identify this requirement. However, classes of various numbers have been certified. This requirement might be more appropriately termed “impracticality.” See, e.g., Anderson v. Dep’t of Pub. Welfare, 1 F. Supp. 2d 456, 461 (E.D. Pa. 1998); 1 Conte & Newberg, supra note 1, § 3:3.
30. This appears to be the generally accepted formulation of this principle. Gen. Tel. Co. v. E.E.O.C., 446 U.S. 318, 330 (1980); Robidoux v. Celani, 987 F.2d 931, 935-36 (2d Cir. 1993); Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001); Mullen v. Treasure Chest Casino, L.L.C., 186 F.3d 620, 624 (5th Cir. 1999); In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996); 5 MOORE ET AL., supra note 1, at § 23.33[1][a];1 Conte & Newberg, supra note 1, § 3:6.
31. 7AA Wright et al., supra note 1, § 1762, at 176; 5 Moore et al., supra note 1, 23.05[3] at 23-156. See Robidoux, 987 F.2d at 935-36.
32. Classes of various sizes have been certified: Peoples v. Sebring Capital Corp., 209 F.R.D. 428 (N.D. Ill. 2002) (certifying a class of eleven individuals); Grant v. Sullivan, 131 F.R.D. 436 (M.D. Pa. 1990) (noting that in some cases, particularly where declaratory and injunctive relief is sought classes as small as fourteen may be certified); Hernandez v. Alexander, 152 F.R.D. 192 (D. Nev. 1993) (indicating that a class of fifty-two might meet numerosity requirements but declined to certify because of failure to show “impracticability” of individual joinder); Hash v. United States, No. CV 99-324-S-MHW, 2000 WL 1460801, 2000 U.S. Dist. LEXIS 20061 (D. Ida. July 6, 2000) (certifying a class of 200 landowners), rev’d and vacated on other grounds, 403 F. 3d 1308 (Fed. Cir. 2005); Loma Linda Med. Ctr. v. Farmers Group, Inc., No. S-94-0681-WBS/JFM, 1995 WL 363441, 1995 U.S. Dist. LEXIS 9668 (E.D. Cal. May 15, 1995) (certifying a class of 626); Immigrant Assistance Project v. I.N.S., 306 F.3d 842 (9th Cir. 2002) (certifying a class of 11,000). For a review of earlier cases where classes of less than 100 were certified, see Jordan v. County of L. A., 669 F.2d 1311 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982).
33. See Evans v. U.S. Pipe & Foundry, 696 F.2d 925, 930 (11th Cir. 1983); Talbott v. GC Servs., Ltd. Pshp., 191 F.R.D. 99 (W.D. Va. 2000); McGlothlin v. Connors, 142 F.R.D. 626, 632 (W.D. Va. 1992).
34. Courts have struggled to produce a rule governing the inclusion of future adversely affected persons within a class. Although those already injured by an unlawful practice can be identified, knowing how many will be injured if the practice is continued is inherently impossible. Accordingly, some courts routinely include future victims of the challenged conduct within the class definition. See e.g., Pederson v. La. State Univ., 213 F.3d 858, 868 n.11 (5th Cir. 2000). Such inclusion of future victims does not render the class definition too vague for certification. Probe v. State Teachers’ Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986).
35. Fed. R. Civ. P. 23(a)(2); Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). See also Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (Clearinghouse No. 50,954).
36. See, e.g., Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001).
37. See, J.B. v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999) (Clearinghouse No. 52,608); In Re Am. Med. Sys. Inc., 75 F.3d at 1080; Baby Neal, 43 F.3d at 56.
38. Applewhite v. Reichhold Chemical Inc., 67 F.3d 571, 573 (5th Cir. 1995).
39. Savino v. Consumer Credit Co., 173 F.R.D. 346 (E.D.N.Y. 1997), aff’d in relevant parts, 164 F.3d 81, 86-87 (2d Cir. 1998) (accepting that individual differences in determination of injuries and damages does not defeat commonality requirement though ultimately not certifying class for other reasons).
40. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 156 (1982) (quotation omitted).
41. Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002).
42. Prado-Steiman v. Bush, 221 F.3d 1266, 1278-79 (11th Cir. 2000).
43. Stewart v. Abraham, 275 F.3d 220, 227-28 (3d Cir. 2001) (certifying class challenging city’s re-arrest policy). See also Piazza v. Ebsco Industries Inc., 273 F.3d 1341, 1351 (11th Cir. 2001) (strong similarity of legal theories satisfies typicality despite substantial factual differences).
44. Piazza, 273 F.3d at 1351.
45. See generally Conte & Newberg, supra note 1, § 1.03 (notice and adequacy of representation are touchstones of due process in class actions). See also In re Am. Med. Sys. Inc., 75 F.3d at 1083 and Broussard v. Meineke Disc. Muffler Shops Inc., 155 F.3d 331, 338 (4th Cir. 1998) (explaining the class action premise that, because “litigation by representative parties adjudicates basic due process rights of all class members, named plaintiffs must possess undivided loyalty to absent class members”).
46. Hansberry v. Lee, 311 U.S. 32 (1940). For a good explanation of this case, see Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 486-87 (5th Cir. 1982). See also Richards v. Jefferson Co., 517 U.S. 793, 800-01 (1996).
47. But see Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982) (requirements of commonality and typicality tend to merge and so does adequacy-of-representation requirement, although adequacy of representation raises concerns about competency of class counsel and conflicts of interest).
48. Amchem Prod. Inc. v. Windsor, 521 U.S. 591, 626 (1997). See also Berger v. Compaq Computer Corp., 257 F.3d 475, 480 (5th Cir. 2001) (differences between named plaintiffs and class members render named plaintiffs inadequate only when those differences create conflicts.)
49. See, e.g., Diaz v. Hillsborough Co. Hosp. Auth., 165 F.R.D. 689, 694 (M.D. Fla. 1996) (the court rejected defendant’s assertion that named plaintiff’s request to review medical records was effort to publicize confidential information).
50. See, e.g., Diaz v. Romer, 961 F.2d 1508 (10th Cir. 1992) and cases cited therein (appropriate to certify subclasses due to conflict between those class members who were HIV-positive and those who were HIV-negative). See also Marisol A., 126 F.3d at 378-79 (affirming class certification but suggesting to district court on remand ways to subdivide the class).
51. Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 487 (5th Cir. 1982) (explaining options open to a district court).
52. See, e.g., Fabricant v. Sears Roebuck & Co., 202 F.R.D. 306, 308 (S.D. Fla. 2001) (Clearinghouse No. 53,539)(“So long as the exclusions preserve the objective nature of the class definition, persons may be excluded from the class.”)
53. Harrison v. Chicago Tribune Co., 992 F.2d 697, 704 (7th Cir. 1993). For further discussion of delay in moving for class certification, see infra note 64.
54. Horton, 690 F.2d at 485 n.26.
55. Marisol A., 126 F.2d at 378 (inquiry into whether named plaintiffs will represent potential class with necessary vigor most often described as turning on questions of “whether plaintiffs’ counsel are qualified, experienced, and generally able to conduct proposed litigation”). See also Berger v. Compaq Computer Corp., 257 F.3d 475, 479 (5th Cir. 2001) (adequacy requirement mandates inquiry into the zeal and competence of representatives’ counsel). The adequacy of counsel is generally pled in the motion for class certification and resumes of counsel are attached.
56. E. Tex. Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 405 (1977). But see In re Arakis Energy Corp. Sec. Litig., No.1:95-civ-3431 (AAR) , 1999 WL 1021819, 1999 U.S. Dist. LEXIS 22246 (E.D.N.Y. April 23, 1999) (finding small delay insufficient to deny certification and collecting cases discussing issue).
57. See, e.g., Armstrong v. Chi. Park Dist., 117 F.R.D. 623, 631-34 (N.D. Ill. 1987) (holding inexperience alone may not be sufficient, but examining mistakes in other class actions as well as the one before in denying certification based on mistakes and inexperience).
58. E. Tex. Motor Freight Sys., 431 U.S. at 405.
59. Barrie v. Intervoice-Brite, Inc., No. 3:01-CV-1071-K, 2006 U.S. Dist. LEXIS 69299 (N.D. Tex. Sept. 26, 2006) (holding the court must consider the work counsel has done in identifying or investigating potential claims in the action, counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action, counsel's knowledge of the applicable law, and the resources counsel will commit to representing the class).
60. See, e.g., Garrish v. UAW, 149 F. Supp. 2d 326 (E.D. Mich. 2001) (finding that union membership was an objective criterion sufficient to define a class); Daniels v. City of N. Y., 198 F.R.D. 409, 414 (S.D.N.Y. 2001) (finding that a proposed class of persons stopped and frisked by a street crimes police unit in the absence of reasonable suspicion was sufficiently definable for certification); Pigford v. Glickman, 182 F.R.D. 341 (D.D.C. 1998) (Clearinghouse No. 52,961) (finding a sufficiently definable class when farmers suing the U.S. Department of Agriculture defined a class as those African American farmers who farmed between certain dates, applied to participate in department programs between those dates, and filed with the department a written complaint alleging a discriminatory response to their applications).
61. Oldroyd v. Kugler, 352 F. Supp. 27, 31 (D.N.J. 1972) (class not certified where putative class members had a “fear of prosecution” for flag desecration because class defined in terms of subjective criterion of state-of-mind). See also DeBremaecker v. Short, 433 F.2d 733 (5th Cir. 1970) (class definition “active in peace movement” too vague for objective criteria to identify class).
62. Mueller v. CBS Inc., 200 F.R.D. 227 (W.D. Pa. 2001) (declining to certify class where numerous individual determinations were necessary to identify class members). See generally UAW v. GMC, No. 05 CV 73991-DT, 2006 U.S. Dist. LEXIS 14890 (E.D. Mich. March 31, 2006).
63. Pagan v. Dubois, 884 F. Supp. 25 (D. Mass. 1995).
64. See Santillan v. Ashcroft, No. C 04-2686 MHP, 2004 U.S. Dist. LEXIS 20824 (N.D. Cal. Oct. 12, 2004); Probe v. State Teachers’ Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986). See also 7A WRIGHT ET AL., supra note 1, § 1760, at 139.
65. Clay v. Am. Tobacco Co., 188 F.R.D. 483, 490 (S.D. Ill. 1999).
66. Cf. In re Aiello, 231 B.R. 693, 708-09 (Bankr. N.D. Ill. 1999), aff’d sub nom. Aiello v. Providan Fin. Corp., 257 B.R. 245 (Bankr.N.D. Ill. 2000) (striking class allegations because some members of proposed class suffered no actual damages but permitting individual claims on plaintiffs who did suffer damages).
67. E. Tex. Motor Freight Sys., 431 U.S. at 403-04. See also Kelley v. Galveston Autoplex, 196 F.R.D. 471, 474 (S.D. Tex. 2000); McGlothlin v. Connors, 142 F.R.D. 626, 632 (W.D. Va. 1992).
68. See, e.g., Minority Employees v. Tenn. Dep’t of Employment, 573 F. Supp. 1346, 1348 (M.D. Tenn. 1983).
69. UAW v. Brock, 477 U.S. 274 (1986); Friends of the Earth, Inc. v. Chevron Chem. Co., 128 F.3d 826, 827-28 (5th Cir. 1997); Sw. Suburban Bd. of Realtors, Inc. v. Beverly Planning Ass’n, 830 F.2d 1374, 1380 (7th Cir. 1987). See Chapter 3, Section I of this MANUAL.
70. Smith v. Bd. of Educ. of Morrilton Sch. Dist. No. 32, 365 F.2d 770 (8th Cir. 1966).
71. See generally 7A Wright et al., supra note 1, § 1761, at 157-61.
72. Sosna v. Iowa, 419 U.S. 393 (1975); see Roman v. Korson, 307 F. Supp. 2d 908, 914-15 (W.D. Mich. 2004).
73. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980). See Chapter 3, Section III.C of this MANUAL for further guidance on this point.
74. Gerstein v. Pugh, 420 U.S. 103 (1975); see Portis v. City of Chi., 347 F.Supp. 2d 573 (N.D. Ill. 2004).
75. Fed. R. Civ. P. 23(b)(1)(A) advisory committee’s notes, 1966 amends.
76. See, e.g., Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir.), amended by 273 F.3d 1266 (9th Cir. 2001). See also 7AA Wright et al., supra note 1, § 1773, at 13.
77. Fed. R. Civ. P. 23(b)(1)(B) advisory committee’s notes, 1966 amends.
78. Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).
79. Id. at 834.
80. Stewart v. Abraham, 275 F.3d 220, 227-28 (3d Cir. 2001) (affirming certification of (b)(2) class despite factual differences since there was at least one question of fact and law common to each class member). Jordan v. Commonwealth Fin. Sys., 237 F.R.D. 132 (E.D. Pa. 2006).
81. Sosna, 419 U.S. at 403.
82. James v. City of Dallas, 254 F.3d 551, 563 (5th Cir. 2001), cert. denied, 534 U.S. 1113 (2002).
83. Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1240 n.3 (9th Cir. 1998). See Hoffman v. Honda of Am. Mfg., Inc., 191 F.R.D. 530, 535-37 (S.D. Ohio 1999); Ass'n for Disabled Am., Inc. v. Amoco Oil Co., 211 F.R.D. 457 (S.D. Fl. 2002).
84. However, the 2003 amendment to Rule 23(c), provides that the court “may” direct appropriate notice to the class.
86. Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998).
87. Id. at 411-19.
88. Id. at 419. This case also discusses the effect of the Seventh Amendment right to a jury trial on a class action. Id. at 422-24. Most circuits have adopted this approach. See Judith E. Harris, Recent Developments in Discrimination Law: Race Discrimination, SG047-ALI-ABA 397, 408-16 (2001).
89. But see Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001) (disagreeing with Allison). For a discussion of class actions post-Allison, see Suzette M. Malveaux, Fighting to Keep Employment Discrimination Class Actions Alive: How Allison v. Citgo's Predomination Requirement Threatens to Undermine Title VII Enforcement, 26 Berkley J. Emp. & Lab. L. 405 (2005).
90. See generally 7A Wright et al., supra note 1, § 1777. The relevant considerations for so determining are listed in Rule 23(b)(3)(A)-(D).
91. The 2003 amendments significantly change the notice requirements in (b)(3) cases: courts now may refuse to approve settlements unless they contain post-settlement opt-out notice to all class members. See Fed. R. Civ. P. 23(e)(3).
IV. Defining and Managing a Class >