8 Concepts of Class Actions:
1. What is the class? See Below (1st question to answer)
2. Day in court: Need the court to balance avoiding overwhelming the judicial system and allowing people their day in court.
3. Adequate representation: Does the plaintiff have a good case as to represent everyone? Can the attorney adequately represent the plaintiff’s interest? Members claims not extinguished by class action litigation if interest is not adequately represented.
4. Empower the disempowered
5. Are we really on same side?
6. Will it work?
7. Will procedure alter substance? Rules of procedure shall not abridge, enlarge, or modify as substantive right.
8. Alternatives. What are they and who evaluates?
What we want in a rule:
Discretionary Decision to avoid multiplitous suits
Legal Determination (based on Res Judicata)
Public policy demands that we look at Rule 23 liberally as we can always restrict later.
1st Step (Threshold Requirements): Determine who/what the Class is?
Class needs to be defined. Cannot have set ru
e class exists if its members can be ascertained by reference to objective criteria.
Need to know who class is for:
i. Res Judicata
ii. Entitled to Relief
iii. Entitled to Notice
Characteristics for determining a class:
Use objective criteria
i. Do not use a plaintiff’s state of mind or terms that depend on resolution of the merits (e.g. person’s who were discriminated against)
ii. Use objective terms in defining persons to be excluded from the class, such as affiliates of the defendants, residents of particular states, personal who have filed their own actions, or members of another class.
1. Example: “All people who suffered legally cognizable personal damages by Birdman from such and such date.”
iii. Terms used can change 23(a) factors
1. Example: Affected byà Changes the commonality of the suit
2. Example Two: Located By
iv. Subjectiveà “who wish to”
Differences in applicable law and the number of divergent