A critical preliminary issue is whether the number of members of the class who share a common right is so large that a class action is the superior means by which to litigate the action. If "the number [of putative class members] is so large that each cannot practically represent himself, either in the same or in separate lawsuits, then the court may allow this representative suit to bind all, if the other factors to be considered favor it." Ford Motor Credit Co. v. London, 332 S.E.2d 345, 347 (1985).
Georgia law recognizes that classes consisting of as few as 25 members are sufficient to satisfy the numerosity requirement for certification. Stevens v. Thomas, 257 Ga. 645, 649, 361 SE2d 800 (1987); Sta-Power Industries v. Avant, 134 Ga. App. 952, 216SE2d 897 (1975). Federal courts have certified classes with as few as 18 members. Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass'n., 375 F2d 648, 653 (4th Cir. 1967)
Commonality exists where the class members share a common right and common questions of law or fact. There need not be a total absence of individual questions of law or fact so long as the common questions predominate. Trend Star Continental, Ltd. v. Branham, 220 Ga. App. 781, 782, 469 SE2d 750 (1996).
Although some of the facts may be different as to each member of the class, certification is appropriate so long as "the character of the right sought to be enforced" is common to each class member. UNUM Life Ins. Co. of America v. Crutchfield, 568 S.E.2d 767, 768 (2002).
Claims are typical if they arise out of the same course of conduct or pattern and practice and are predicated on the same legal and remedial theories. In "a properly certified damages class action, proof of the class representatives' claims will necessarily prove one or more elements of the class members' claims." Rollins, Inc. v. Warren, 653 S.E.2d 794, 799 (2007).
Adequacy of representation
Adequacy of representation deals with the class representative and the class representative's counsel who is seeking to represent the class.
A class representative must fairly and adequately protect the interest of members of the class and must have no interest antagonistic to those of the class members.
Class counsel must be competent in the prosecution of complex civil litigation and class actions in general.
Superiority requires that a class action be superior to any other means for the fair and efficient resolution of an issue. Courts look at a number of factors in evaluating superiority, including:
A. Whether the size of the class member's damages are too small to make individual litigation an economically viable alternative;
B. Judicial economy;
C. The risk of inconsistent rulings and contradictory judgments if individual cases are brought;
D. Management difficulties; and
E. Whether there are other causes of action available that will provide an adequate remedy for the wrong committed.
Additional resources provided by the author
If you are interested in pursuing a class action, you should speak with an experienced class action attorney as soon as possible.