I. Threshold Req for Class Cert
A. Implicit Reqs: IR not in txt of R23a – but all 3 IR must be met before address 4 ER under 23a
(1) Definable Class; (2) Representative’s membership in the class; and (3) Claim must be LIVE, not moot.
(1) Definable Class. R23(c)(1)(B)
Class definitions must ID CM, class claims, issues or defenses.
CM must be defined as ascert by objective criteria: must avoid subjctv stds (like SOM) terms dependant of resul of merits (like persons who were discrim against); should also use objctv terms in defining people EXCLUDED from class (like affiliates of ∆, residents of particular states, mmbrs of another class, or persons who have filed their own actions)
Note: 7th COA says SOM not=auto cert deny; just a way to alert crts that might be diff in ID CM
Defining class is critical: ID’s those entitled to relief; ascer those bound by judgment & what type of ntc req – def must be precise, workable & presently ascert (Note: don’t need ID each individ before cert, but CM must be ascert by objctv stds; also def may be suff even if individ not presently ID are included in def, or even if members subj to change. Also, not every potential CM must suff injry (def can also incl those not injrd, or those who don’t want to pursue claims).
Future Claimants: class may be def to incl. FC (usually in mass tort involv.latent injury); aside f/ mass tort, b3 CM should ordinarily be ascert by time judgmnt entered.
Definable Class Rules for (b)(1) or (b)(2) CA: unlike b3, unnecess to ID every indivd.mmber @ cert stg, as long as crt can determ at any given time whether particul.individ. is mmber of class
(2) Rep’s mmbrshp in class
named п must qualify to be a member of the class itself to bring CA suit
(3) Claim must be LIVE, not moot
Action is moot if: (1) Controv no longer live; or (2) parties lack personal stake in the outcome
(controv. posed by п must be “live” not only @ time of filing, but thru litig. process)
B. Explicit Reqs under 23(a): Numerosity 23a1, Commonality 23a2, Typicality 23a3 & Adequacy of Rep 23a4
Requirement of 23(a)
Focus
Component
Goal
Numerosity 23(a)(1)
Characteristics of Class as a whole bc its an aggregation mechanism
Aggregation of claims
Efficiency
Commonality 23(a)(2)
Characteristics of Class as a whole bc its an aggregation mechanism
Aggregation of claims
Efficiency
Typicality 23(a)(3)
Qualities of Class Representative
Representativeness
Fairness
Adequacy 23(a)(4)
Qualities of Class Representative
Representativeness
Fairness
Requirements for Class Certification under 23(a) àmust also fit under one of 3 types of CA under (b)
(1) Numerosity (23a1)
Class is so numerous that joinder of all members is impracticable(30+ parties needed for class, but there is no set #)
To satisfy numerosity: п must ordinarily demonstrate some evid or reasonable estimate of # of purported CM, but this doesn’t mean the actual # of CM is determinative Q – proper focus isn’t # alone, but whether joinder of all CM is practicable in view of the numerosity of class and other relevant factors (like judicial econ of individ suits)
Complaint does not need allege exact # or ID of CM; crts allowd common sense assump in order to support finding of numerosity – in addition to estimating # of members, court considers judicial economy and ability of members to institute individ suits (JS req diff min: some cert13, others reject grps of 300+: more easily satisfied when equitable relief is sought
(2)Commonality(23a2)
There are Q’s of law or fact common to the class; all Q’s of law/fact don’t need to be common (1 enough to satisfy req)
Note: Commonality & Typicality tend to merge, but each serves diff purp à Commonality examines relationship of facts and legal issues common to CM; while Typicality focuses on relationship of facts and issues between CM and its rep
Terms: pattern of bad behavior, systemic failures, unitary course of conduct, sing
people across country who suffer from same disorder but can’t state how many of them have policies with same INS company (Coverage Insurance)
Based on these facts – is numerosity satisfied? Why or why not?
YES à Numerosity Satisfied bc:
NO à Numerosity NOT Satisfied bc:
(1) Potential class members are geographically dispersed (joinder would be difficult);
(2) its easy to find out how many of the estimated 1000 have Coverage ins. policies thru class discovery,
(3) potentially social stigma associated with bringing individual suit bc of the alcoholism connected to disease, and
(4) If п seek injunctive and declaratory relief ensuring coverage for this surgery than there is greater chance of satisfying numerosity
(1) if this is the only potential cure, and people die wrongfully after being denied surgery then we’re looking at enormous damages so п would be better off bringing individual suits;
(2) this is a fishing expedition – you can’t give them discovery to find out if they met numerosity requirement bc all you have here are п’s attorneys looking for a lucrative lawsuit; and
(3) and п have burden of proof to show that they meet all req and they have not- they are merely speculating so numerosity is not satisfied – fishing expeditions should not be allowed!!!
(2) Commonality(23a2)
Marisol A. ex.rel. Forbes v. Giuliani (2nd COA, 1997): Named п children bring b2 suit against city for all kids in NY child welfare srvcs; COA applied comm. req permissively (adopted flexible std, giving R23 liberal construction); holds injry all f/ unitary crs conduct
Baby Neal: (3rd COA,1994) b2 case re child welfare (same as Marisol) 3rd found that systemic failures suff to satisfy comm. req, even though individual facts were highly unique) à Both Neal & Marisol п’s used “magic words”; comm. req construed permissively
J.B. ex.rel. HART v. Valdez (10th COA, 1999): Another b2 case for child welfare structural reform, but unlike Neal & Marisol, 10th
