How To Certify A Class Action

Brian K. Herrington

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Litigation Lawyer

Contributor Level 8

Posted over 4 years ago. 3 helpful votes



Read Rule 23 of the Federal Rules of Civil Procedure

The starting point for certifying a class action is familiarizing yourself with Rule 23 of the Federal Rules of Civil Procedure. Rule 23(a) requires that (1) the class be so numerous that joinder is impracticable (2) common issues of law or fact exist (3) the claims of the class are typical and (4) both the class representative and his/her lawyer(s) are adequate to represent the class. Assuming you can satisfy the Rule 23(a) requirements, you can move on to Rule 23(b) to determine what kind of class should be certified. But first things first. Let's concentrate on Rule 23(a) for a moment.


Interview The Client With An Eye Toward A Common Fact Pattern

A common fact pattern is a must to certify a class because Rule 23 requires that the class be so numerous that naming all of the class members and personally joining them in one lawsuit is not practicable. In other words, what happened to your client must have happened to lots of other people. There is no bright line rule on the minimum number required to certify a class. But, generally speaking, at least 40-50 people are needed. Second, the facts that create the potential client's legal claim(s) must be common to other people who would be in the class. For example, a person that was unlawfully fired from his/her job because of something peculiar to that person would not make for a good class representative. Finally, your client has to be an adequate representative of the class and you have to be able to show that you can adequately prosecute the case. For the client, adequacy doesn't mean being the smartest person in the room, but he/she must be familiar with the case facts.


Determine What Type Of Class Is Best

Are you seeking an injunction or are you seeking damages for past misconduct? The answer to that question determines the type of class you should seek. Injunctive relief is primarily provided through a Rule 23(b)(2) class. Damages are primarily provided through a Rule 23(b)(3) class. In (b)(3) classes, common issues of fact/law must predominate over individual issues, and a class action must be superior to other types of means for adjudication of the claims. In the somewhat rare event that a defendant has little money and/or or a limited fund of assets to pay a judgment, you may get a class certified through (b)(1)(B). Rule 23 can be complex depending on the circumstances, but this guide should give you a head start. Of course, the devil is in the details, so this guide should be seen only as an overview.

Additional Resources

Herrington Law, PA Official Website

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