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

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

Posted on 11-02-2018

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)).

  • Numerosity. A class is so large that joinder of all members is impracticable.
  • Commonality. Questions of law or fact are common to the class.
  • Typicality. Named parties’ claims or defenses are typical of the class.
  • Adequacy of representation. Representatives will fairly and adequately protect the interests of the class.

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.

FACTORSUMMARIES FROM REPRESENTATIVE CASES
Numerosity
  • 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).
Commonality
  • 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
  • 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).
The injunction is in the public interest
  • 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).

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.


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