Civ Pro II - Class Actions: Rule 23 in Theory

Class Action Practice includes: 

1. Certification requirements 

2. Adequacy of representation 

3. Rule 23(b) categories 

4. Notice 

5. Reforms 

   • Note: If motion to certify (MTC) under Rule 23(c) is granted, then case usually settles 

   • This is because the downside of losing on the merits has drastically increased. 

Hallmarks of Class Action Practice:   

1. Litigation by representation, not individual joinder 

2. Absentees bound to judgement anyway 

3. At least 2 lawsuits underway in a class action proceeding: 

   1. Representative plaintiffs action 

   2. Absentees (class's) collective action

What are the Class Certification Requirements?

1. Identifiability 

2. Membership 

3. Numerosity 

4. Commonality 

5. Typicality 

6. Adequacy of Representation 

7. Rule 23(b) Category 

   1. (b)(1) Anti-prejudice class 

   2. (b)(2) Equitable class 

   3. (b)(3) Damages class (most classes fall under) 

      1. Two tests include

         1. Superiority

         2. Predominance 

(Only up to 4 tested)

Identifiability Rule

class is identifiable if its membership is reasonably ascertainable 

• Ex: this is satisfied because "Identifying 'all passengers who were injured while riding bus on collision date is reasonably ascertainable'." 

Membership Rule

The named representative (P) must be member of class they seek to represent. 

• Ex: "this is satisfied b/c Passenger #1 is member of class b/c he fits class description of 'All passengers who were injured... date.'" 

Numerosity Rule

Class must be so Numerous that joinder of individual claims and parties would be impracticable. 

• 40 people or more = sufficient 

• 20 people or less = insufficient 

• In between, it depends! 

• Ex: "This is not satisfied, because it would be impracticable to join 33 individual passengers from 5 US states and various Canadian Provinces. Passengers may not want to leave their countries to litigate." 

Commonality Rule

Class action must present at least 1 common Q of law or fact 

• Definition: Common Q of law or fact is Q that produces same common answer. [as to all class members] 

• Trigger fact: Causation  

• Ex: "Commonality is satisfied b/c whether Nauta was wearing glasses as to passenger #1 is Q of fact for which there should be same answer as to passengers #2 through 33."

Typicality Rule

• Claims of named representative must be Typical of claims of absent class members. 

• Definition: Typical means similar 

• Ex: "Typicality is satisfied b/c each class member has Negligence claim due to personal injuries sustained in bus collision." (Must name the claim) 

  • Counterclaim ex: the negligence can cause DIFFERENT personal injuries. Someone might have broken an arm whereas another has broken a leg whereas another has psychological issues.  

Adequacy of Representation Rule

Both named representative (P) and legal representative must be adequate. 

• Definition: adequate commitment and no potential or actual conflicts of interest. 

  • Note: may be most important requirement due to Due Process implications. BOTH MUST BE SATISFIED. 

• Ex: Adequacy of Representation could be satisfied if passenger #1 is committed to see litigation through and lacks conflicts of interest. 

Rule 23(b) Category: (b)(1) Anti-prejudice class Test

• Test: Individual joinder would expose class members or defendant to D/M/I. 

• No Notice/Opt out required  

Rule 23(b) Category: (b)(2) Equitable class 

• Test: Defendant has acted/refused to act on grounds generally applicable to class so that injunctive/declaratory relief is appropriate 

  • Injunctive/declatory relief means defendant has applied a policy that applies to all members and the class members want the D to STOP applying/promoting that policy (ex: Not hiring people with disabilities, etc.)  

• No notice/Opt Out required 

Rule 23(b) Category: (b)(3) Damages class (most classes fall under) : Superiority Test

• Rule: Class Action is Superior to individual joinder of absent class members if the four factors balance in favor of it (list all 4) 

• Definition: Balance individuals' interest in control, extent/nature of litigation begun, forum desirability, management difficulties. 

• Ex:  

  • Superiority may be satisfied because it would be desirable to concentrate claims in Candy's forum and thereby avoiding cumulative nuisance of litigating potentially millions claims around the country. 

  • Superiority may not be satisfied under these unique facts (e.g., competing interests of 33 passengers from 5 US states, various CAN provinces in controlling litigation).  

• Must show that the class treatment is SUPERIOR to the joinder or individual parties 

• All 4 Factors must be balanced: (See next card)

Rule 23(b) Category: (b)(3) Damages class (most classes fall under) : Superiority 4 Factors

1. Individuals' interest in control of litigation 

   1. When going into a class action, the P loses control 

2. Extent/nature of litigation already begun  

   1. Only 4 of the 33 have filed lawsuits, but more may be coming 

3. Desirability of forum 

   1. Desirability of the forum in which the class would be concentrated (I.e. northern district of CA) 

4. Likely management difficulties 

   1. The bigger the class, or the more they're spread out geographically presents management difficulties 

Rule 23(b) Category: (b)(3) Damages class (most classes fall under) : Predominance Test

• Rule: Common Q's of law or fact must Predominate over non-common Q's. 

• Definition: Common Q's of law or fact must be numerous or really significant. 

• Ex: Predominance could be satisfied given importance of establishing common Q of fact whether Nauta was wearing Rx lenses. 

• Plus: Notice/Opt Our Required 

  • must give notice to all class action members and give them a chance to opt out (I.e. dilute the strength of the class)