Class Action Rule 23(a) Prerequisites Standards Chart (2d Cir.)

• Numerosity is presumed at a level of 40 members. Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 85 (S.D.N.Y. 2001).
• Evidence of exact class size or identity of class members is not required to satisfy the numerosity requirement. Rather, a district court must make a factual finding as to the approximate size of the class based on the evidence presented and then apply the legal standard governing numerosity. Charrons v. Pinnacle Grp. NY LLC, 269 F.R.D. 221, 230 (S.D.N.Y. 2010).
• The numerosity requirement in Rule 23(a)(1) does not mandate that joinder of all parties be impossible—only that the difficulty or inconvenience of joining all members of the class make use of the class action appropriate. Cent. States SE & SW Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 244-45 (2d Cir. 2007).

• Rule 23(a)(2) requires a showing of questions of law or fact common to the class. Commonality is satisfied where a single issue of law or fact is common to the class. However, class certification requires not only common questions, but the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. In re Scotts EZ Seed Litig., 304 F.R.D. 397, 405 (S.D.N.Y. 2015).
• Rule 23(a)’s commonality prerequisite is satisfied if there is a common issue that drives the resolution of the litigation such that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Consideration of this requirement obligates a district court to determine whether plaintiffs have suffered the same injury. Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 85 (2d Cir. 2015)
• The commonality requirement is met if plaintiffs’ grievances share a common question of law or fact. However, commonality does not mandate that all class members make identical claims and arguments, only that common issues of fact or law affect all class members. A court may find a common issue of law even though there exists some factual variation among class members’ specific grievances. Stinson v. City of N.Y., 282 F.R.D. 360, 369 (S.D.N.Y. 2012).
• Although some courts tend to merge Rule 23’s commonality prong with the typicality prong, the commonality requirement is distinct from typicality in that it tests the definition of the class itself rather than focusing on the relationship between the putative class representative and the other class members. Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. (In re Vitamin C Antitrust Litig.), 279 F.R.D. 90, 99 (E.D.N.Y. 2012).

• Typicality requires that the claims of the class representatives be typical of those of the class, and it is satisfied when each class member’s claim arises from the same course of events and each class member makes similar legal arguments to prove the defendant’s liability. Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 155 (2d Cir. 2001).
• When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying minor individual claims. Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993).
• A difference in damages arising from a disparity in injuries among the plaintiff class does not preclude typicality. Duprey v. Conn. Dep’t of Motor Vehicles, 191 F.R.D. 329, 337 (D. Conn. 2000).
• Typicality ensures that class representatives have the incentive to prove all the elements of the cause of action which would be presented by the individual members of the class were they initiating individualized actions. In re Glob. Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 452 (S.D.N.Y. 2004).

• Generally, adequacy of representation entails inquiry as to whether (1) plaintiff’s interests are antagonistic to the interest of other members of the class; and (2) plaintiff’s attorneys are qualified, experienced, and able to conduct the litigation. Baffa v. Donaldson, 222 F.3d 52, 60 (2d Cir. 2000).
• Rule 23(a)(4) requires that the representative parties will fairly and adequately protect the interests of the class. This requirement is rooted in due process concerns. As a threshold matter, a class representative is not deemed adequate unless it is a member of the class it purports to represent. Once the threshold showing is made, a three-part test must be met. First, plaintiff must demonstrate that class counsel is qualified, experienced generally, able to conduct the litigation, and that no conflicts exist that might impair its representation. Second, the named plaintiff must show that there is no conflict of interest between the named plaintiffs and other members of the plaintiff class. Third, a named plaintiff must exhibit enough integrity and credibility to convince the court that the named plaintiff will diligently perform its fiduciary duties to the class. Kurtz v. Kimberly-Clark Corp., 321 F.R.D. 482, 535-36 (E.D.N.Y. 2017).
• The adequacy inquiry serves to uncover conflicts of interest between named parties and the class they seek to represent. Not every potential conflict will preclude a finding of adequacy, however. The conflict that will prevent a plaintiff from meeting the Rule 23(a)(4) prerequisite must be fundamental, and speculative conflict should be disregarded at the class certification stage. Freeland v. AT&T Corp., 238 F.R.D. 130, 141 (S.D.N.Y. 2006).
• Rule 23(a)(4) also requires that the named representatives be prepared to engage in vigorous prosecution of the alleged claim. Steinberg v. Nationwide Mut. Ins. Co., 224 F.R.D. 67, 73 (E.D.N.Y. 2004).
• Class certification may properly be denied where the class representatives have so little knowledge of and involvement in the class action that they would be unable or unwilling to protect the interests of the class against the possibly competing interests of the attorneys. Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1077-78 (2d Cir. 1995).

For general information on Class Actions and Multidistrict Litigation, see

> CLASS ACTION FUNDAMENTALS (FEDERAL)

RESEARCH PATH: Civil Litigation > Class Actions and Multidistrict Litigation > Practice Notes

For a discussion of moving for class certification in federal court, see

> MOTION FOR CLASS CERTIFICATION: MAKING THE MOTION (FEDERAL)

RESEARCH PATH: Civil Litigation > Class Actions and Multidistrict Litigation > Practice Notes

For a step-by-step explanation of how to move for class certification, see

> MOTION FOR CLASS CERTIFICATION: MAKING THE MOTION CHECKLIST (FEDERAL)

RESEARCH PATH: Civil Litigation > Class Actions and Multidistrict Litigation > Checklists

To learn how to settle a federal class action, see

> SETTLING A CLASS ACTION CHECKLIST (FEDERAL)

RESEARCH PATH: Civil Litigation > Class Actions and Multidistrict Litigation > Checklists

For a sample class action settlement agreement, see

> CLASS ACTION SETTLEMENT AGREEMENT (RULE 23(B)(3)) (FEDERAL)

RESEARCH PATH: Civil Litigation > Class Actions and Multidistrict Litigation > Forms

For guidance on how to recover attorneys’ fees in a federal class action, see

> CLASS ACTION ATTORNEYS’ FEES CHECKLIST (FEDERAL)

RESEARCH PATH: Civil Litigation > Class Actions and Multidistrict Litigation > Checklists

For information on calculating attorneys’ fees for Class Actions and Multidistrict Litigation in the U.S. Court of Appeals for the Second Circuit, see

> CLASS ACTION ATTORNEYS’ FEES SETTLEMENT CALCULATION STANDARDS CHART (2D CIR.)

RESEARCH PATH: Civil Litigation > Class Actions and Multidistrict Litigation > Checklists