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By: Jim Wagstaffe and The Wagstaffe Group
A PARTY SEEKING CLASS CERTIFICATION MUST SATISFY THE four requirements set forth under Fed. R. Civ. P. 23(a) (Rule 23(a)).
Fed. R. Civ. P. 23(a); Denney v. Deutsche Bank AG, 443 F.3d 253, 267 (2d Cir. 2006).
The proponent of class certification bears the burden of proof with respect to the Rule 23(a) prerequisites. Ansoumana v. Gristede’s Operating Corp., 201 F.R.D. 81, 85 (S.D.N.Y. 2001). In addition, the U.S. Court of Appeals for the Second Circuit recognizes the implicit requirement in Rule 23(a) that an ascertainable class exists and is properly defined. An identifiable class exists if its members can be ascertained by reference to objective criteria so that it is administratively feasible for a court to determine whether a particular individual is a member of the class. In re Fosamax Prods. Liab. Litig., 248 F.R.D. 389, 395 (S.D.N.Y. 2008).
The following chart lists the Rule 23(a) factors alongside language from representative Second Circuit cases explaining the factor.
James M. Wagstaffe is a renowned author, litigator, educator, and lecturer, and the premier industry authority on pretrial federal civil procedure. He is a partner and co-founder of Kerr & Wagstaffe LLP, where he heads the firm’s Federal Practice Group. See his full bio here: https://www.lexisnexis.com/en-us/practice-advisor-authors/profiles/james-wagstaffe.page.
To find this article in Lexis Practice Advisor, follow this research path:
RESEARCH PATH: Civil Litigation > Class Actions and Multidistrict Litigation > Checklists
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)
For a step-by-step explanation of how to move for class certification, see
> MOTION FOR CLASS CERTIFICATION: MAKING THE MOTION CHECKLIST (FEDERAL)
To learn how to settle a federal class action, see
> SETTLING A CLASS ACTION CHECKLIST (FEDERAL)
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)
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.)