The Federal Class Action Practice Manual

Chapter 2: Mandatory Prerequisites for Class Certification

[§7] Standing to Bring Suit

Individual standing is a prerequisite for all actions, including class actions. See O'Shea v. Littleton, 414 U.S. 488, 494 (1974); Sierra Club v. Morton, 405 U.S. 727 (1972); Fallick v. Nationwide Mutual Insurance Company, 162 F.3d 410 (6th Cir. 1998). "A court must assess standing to sue based upon the standing of the named plaintiff and not upon the standing of unidentified class members." Adair v. Sorenson, 134 F.R.D. 13, 16 (D Mass. 1991), citing Warth v. Seldin, 422 U.S. 490, 502, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). An analysis of the standing question therefore precedes any determination under Rule 23. See German v. Federal Loan Home Mortgage Corp., 885 F. Supp. 537, 547 (SDNY 1995); Vulcan Society of Westchester County v. Fire Dept. of City of White Plains, 82 F.R.D.379, 398 (SDNY 1979); Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987); see also Brown v. Sibley, 650 F.2d 760, 771 (5th Cir. Unit A, July 1981) (stating that the "constitutional threshold [of standing] must be met before any consideration of the typiClass Action Litigationty of claims or commonality of issues required for procedural reasons by Fed. R. Civ. P. 23"). "Only after the court determines the issues for which the named plaintiffs have standing should it address the question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to assert the rights of others." Griffin, 823 F.2d at 1482 Standing is not merely a pleading requirement, but an indispensable part of the case, and must be established by evidence appropriate for every stage of the litigation. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992).

To have standing to sue as a class representative, it is essential that a named plaintiff be a member of the class and "possess the same interest and suffer the same injury shared by all members of the class" represented. East Tex. Motor Freight Sys. Inc. v. Rodriquez, 431 U.S. 395, 403 (1977); Schlesinger v Reservist Comm. to Stop the War, 418 U.S. 208, 216, 94 S.Ct 2925, 41 L.Ed 2d 706 (1974); Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998). It is also well settled that the named class representative must be a member of the class at the time the class is certified. East Texas Motor Freight System v Rodriquez 431 U.S. 395, 975 S.Ct 1891, 52 L.Ed 2d 453 (1977); Sosna v Iowa, 419 U.S. 393, 95 S.Ct 553, 42 L.Ed 2d 532 (1975); Clay v Miller, 626 F.2d 345 (4th Cir. 1980). See Kent-Chojnicki v. Runyon, 180 F.R. D. 237 (WDNY 1998).

Where claims for damages and equitable relief arise from the same "operative facts and legal theory" a plaintiff with standing to seek damages also has standing to request injunctive and declaratory relief. See Nava v. City of Dublin, 121 F.3d 453, 456 (9th Cir. 1997) (citing Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983); Giles v. Ackerman, 746 F.2d 614, 619 (9th Cir. 1984) (per curiam); Smith v. City of Fontana, 818 F.2d 1411, 1423 (9th Cir. 1987). The principle enunciated in Giles is not without controversy. The Ninth Circuit is the only one to recognize such an exception. As such, the Nava court applied the exception with reservation, and noted that several Ninth Circuit decisions impliedly declined to apply the rule. See id. at 457-58 (citing O'Neal v. City of Seattle, 66 F.3d 1064, 1066 (9th Cir. 1995); Thomas v. County of Los Angeles, 978 F.2d 504, 507-08, 511 (9th Cir. 1992); Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303, 1306-09 (9th Cir. 1992); Nelsen v. King County, 895 F.2d 1248, 1249-55 (9th Cir. 1990); Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 528-29 (9th Cir. 1989))

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[§8] All Rule 23 Elements Must be Satisfied if Case is to be Certified

Federal Rule of Civil Procedure 23 provides that "as soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be maintained. Various court rules may require a motion for class certification be filed at an early stage of the proceeding.

A fundamental prerequisite to the maintenance of any class action is that there is an identifiable class and the named plaintiff be a member of that class. Bailey v. Patterson, 369 U.S. 31, 33, 7 L. Ed. 2d 512, 82 S. Ct. 549 (1962); Roman v ESB, Inc., 550 F.2d 1343, 1348 (4th Cir. 1976); McGlothin v Connors, 142 F.R.D. 626, 632 (WD Va 1992). As an initial matter, the court should also consider whether the proposed definition of the class is proper. See Alliance to End Repression v. Rochford, 565 F.2d 975, 977 (7th Cir. 1977).

The requirement that a class be clearly defined is designed primarily to help the trial court manage the class. See Hartman v. Duffey, 19 F.3d 1459, 1471 (DC Cir. 1994). It is not designed to be a particularly stringent test, but plaintiffs must at least be able to establish that "the general outlines of the membership of the class are determinable at the outset of the litigation. 7A Wright & Miller, Federal Practice and Procedure � 1760 at 118. In other words, the class must be sufficiently definite "that it is administratively feasible for the court to determine whether a particular individual is a member. Id. at 121. See Pigford v. Glickman, 182 F.R.D. 341 (DC DC 1998).

The question of class certification is a procedural one distinct from the merits of the action. Pickett v. IBP, Inc., 182 F.R.D. 647-49 (MD Ala. 1998) citing Garcia v. Gloor, 618 F.2d 264 (5th Cir 1980). Plaintiffs need not establish their own case on the merits before a determination of class certification is made by the court. Eisen v Carlisle & Jacquelin, 417 U.S. 156, 94, S.Ct 2140, 40 L.Ed 732 (1974). In evaluating a motion for class certification, courts should generally take the plaintiffs' allegations as true. See Hardin v. Harshburger, 814 F. Supp. 703, 706 (ND Ill 1993).

The court is not to consider the merits of the underlying claims in determining whether the case should be certified. See Barnes v. The American Tobacco Company, 161 F.3d 127 (3d Cir. 1998). However, the court may "probe behind the pleadings before coming to rest on the certification issue." Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570 (11th Cir. 1992). The decision to certify a class is within "the trial court's discretion." Price v. Lucky Stores, Inc., 501 F.2d 1177, 1179 (9th Cir. 1974); O'Connor v. Boeing North American, Inc., 180 F.R.D. 359 (CD Cal. 1997).

In re A.H. Robbins Co., Inc., 880 F.2d 709, 727-28 (4th Cir), cert denied, 493 U.S. 959, 110 S.Ct 377, 107 L.Ed 2d 362 (1989) clearly delineated that certification of a class action requires the action meet the requirements of a two-step test. Initially, as a first step, the action must satisfy all four of the prerequisites mandated by subsection (a) of Rule 23, FRCP. These prerequisites are: (1) numerosity of the parties; (2) commonality of legal and factual issues; (3) typiClass Action Litigationty of the claims and defenses of the class representative; and (4) adequacy of representation. See also Eisen v Carlisle & Jacquelin, 417 U.S. 156, 162, 94 S.Ct 2140, 40 L.Ed 2d 732 (1974). Accord, Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir. 1988).

Assuming the four prerequisites to 23(a) are met, the second step demands the action fit within one or more subsections of (b) of the rule. Accord, Jackson v. Motel 6 Multipurpose, Inc. 130 F.3d 999 (11th Cir. 1997); Pickett v. IBP, Inc., 182 F.R.D. 647 (MD Ala. 1998); Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993); Malone v Microdyne Corp, 148 F.R.D. 153, 156 (ED Va 1993).An action may qualify under (b)(1)(A), the first of such categories, if individual adjudication of the controversy would prejudice any party opposing the class.Alternatively, (b)(1)(B) may be applicable if the class members themselves may be prejudiced.Subsection (b)(2) provides for suits for injunctive or declaratory relief. The final category, (b)(3), applies where there are common issues of law or fact, and the class action device has superiority over any other available procedures for disposing fairly and efficiently of the controversy. See Lerch v Citizens Bancorp., Inc., 144 F.R.D. 247, 250 (DNJ 1992).

The party seeking certification bears the burden of establishing that all prerequisites are met. International Woodworkers of America, AFL-CIO v Chesapeake Bay Plywood Corp, 659 F.2d 1259, 1267 (4th Cir. 1981); Bear v Oglebay, 142 F.R.D. 129, 131 (ND W Va 1992); Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993); Walker v. Jim Dandy Co., 747 F.2d 1360, 1363 (11th Cir. 1984); Byes v. Telecheck Recovery Serv. Inc., 173 F.R.D. 421, 423 (ED La. 1997). Further, after certification under Rule 23 the district court is charged with the duty of monitoring its class decisions in light of the evidentiary development of the case. The district court must define, redefine, subclass and decertify as appropriate in response to the progression of the case from assertion to facts. Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir. 1983).

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[§8.1] All Rule 23 Elements Must be Satisfied to Certify Subclass

Rule 23(c)(4), provides in pertinent part: "When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly." Subclasses must satisfy the same class action requirements as any class before they may be certified. Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 599 (7th Cir. 1993). That is, each subclass must independently meet all the requirements of 23(a) and at least one of the categories specified in 23(b). Roby v. St. Louis Southwestern Ry. Co., 775 F.2d 959, 961 (8th Cir. 1985).

[§9] Numerosity

Under Rule 23, the class must be of sufficient numerosity to make joinder impracticable. The term "Impracticable" does not mean impossible. Ditty v. Check Rite, Ltd., 182 F.R.D. 639 (D Utah 1998); Robidoux v Celani, 987 F2d 931, 935 (2d Cir. 1993); Smith v. B&O R.R., 473 F. Supp. 572, 581 (D. Md. 1979); Doe I v. Guardian Life Insurance Company of America, 145 FRD 466, 471 (ND IL 1992); Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909 (9th Cir. 1964). Impracticability itself depends on an examination of the specific facts of each case and imposes no absolute numerical limitations. See General Tel. Co. of Northwest, Inc. v. EEOC, 446 U.S. 318, 329, 64 L. Ed. 2d 319, 100 S. Ct. 1698 (1980); see also Gurmankin v. Costanzo, 626 F.2d 1132, 1135 (3d Cir. 1980) ("We believe that the numerosity requirement must be evaluated in the context of the particular setting . . ."); Ardrey v. Federal Kemper Ins. Co. , 142 F.R.D. 105, 109 (E.D. Pa. 1992) (Huyett, J.) (stating that the number in the class is not, by itself, determinative).

Accord, Gordon v Forsyth County Hosp Auth., Inc., 409 F. Supp 708, 717 (MDNC 1976)(There is no specific threshold number of absent class plaintiffs required as a prerequisite to certification). Because the courts have not articulated an exact numerical cut-off, courts have repeatedly stated that whether the numerosity requirement has been met depends on the facts of each case. See e.g., General Tel. Co. v. EEOC, 446 U.S. 318, 330, 100 S. Ct. 1698, 1706, 64 L. Ed. 2d 319 (1980); Perez-Funez v. District Director, I.N.S., 611 F. Supp. 990, 995 (CD Cal. 1984).

Generally, courts will find that the "numerosity" requirement has been satisfied when the class comprises forty or more members and will find that it has not been satisfied when the class comprises twenty-one or fewer. See Cox v. American Cast Iron Pipe, 784 F.2d 1546, 1553 (11th Cir. 1986); Padron v. Feaver, 180 F.R.D. 448 (SD Fla. 1998); Ansari v. New York University, 179 F.R.D. 112, 114 (SDNY 1998); Town of New Castle v. Yonkers Contracting Co., 131 F.R.D. 38, 40 (SDNY 1990); Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.), cert. denied, 515 U.S. 1122 (1995). See also,Jordan v Lyng, 659 F. Supp 1403, 1410 (ED Va 1987)(One hundred members or less have been found to meet requirement); Afro American Patrolmens League v. Duck, 503 F.2d 294 (6th Cir. 1974)(Thirty-five members sufficient); Markham v. White, 171 F.R.D. 217, 221 (ND Ill 1997)(class of 35 to 40 plaintiffs sufficient to satisfy numerosity where class members resided in different states). However, these are not rigid parameters, and the ultimate issue is whether the class is too large to make joinder impracticable. See Strykers Bay Neighborhood Council v. City of New York, 695 F. Supp. 1531, 1538 (SDNY 1988).

The court has wide discretion in deciding the issue of numerosity. See Cypress v Newport New General and Nonsectarian Hospital Ass’n, 375 F.2d 648, 653 (4th Cir. 1967); Bates v Tenco Services Inc, 132 F.R.D. 160, 162 (DSC 1990). See FRCP 23(a)(1). It is not necessary that the plaintiffs identify the exact number of class members involved; courts have often used common sense assumptions to support a finding of numerosity. Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1039 (5th Cir. 1981). See also, Brewer v. Friedman, 152 F.R.D. 142 (N.D. Ill. 1993) (Numerosity requirement may be supported by common sense). Accord, Serfaty v. International Automated Systems, 180 F.R.D. 418 (D. Utah 1998). Further, the class need not be so ascertainable that every potential member can be identified at the commencement of the action." Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d � 1760. As long as "the general outlines of the membership of the class are determinable at the outset of the litigation, a class will be deemed to exist." See O'Connor v. Boeing North American, Inc., 180 F.R.D. 359, 366 (CD Cal. 1997) quoting Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d � 1760.

The number of potential plaintiffs in the class is one factor but not the exclusive consideration of the court. If identification of class members is difficult, or geographic or other practical concerns preclude joinder as a realistic matter, this criteria is met. In Ansari v. New York University, 179 F.R.D. 112, 114 - 15 (SDNY 1998), the court stated other factors that may be considered include:

(1)[T]he judicial economy that will arise from avoiding multiple actions; (2) the geographic dispersion of members of the proposed class; (3) the financial resources of those members; (4) the ability of the members to file individual suits; and (5) requests for prospective relief that may have an effect on future class members. See Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993).
A factor pointing towards certification arises when the potential class members do not reside in the same judicial district. See Paper Systems Inc. v. Mitsubishi Corp., 193 F.R.D. 601 (E.D. Wis. 2000); Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D.Ill.1986) (finding that because the twenty-nine proposed class members resided in nine states, joinder was impracticable).

Thus, the circumstances of the particular litigation must be evaluated for the feasibility of joinder considering the totality of the circumstances. See Gen. Tel. Co. of the Northwest, Inc. v EEOC, 446 U.S. 318, 100 S.Ct 1698, 64 L.Ed 2d 319 (1980).

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[§10] Impossibility of Joinder Not Required

Though impossibility may exist in a large number of cases, the explicit terms of Rule 23 do not require impossibility of joinder but rather impracticability. United Brotherhood of Carpenters and Joiners of America Local 1899 v Phoenix Associates, Inc., 152 F.R.D. 518, 522 (SD W Va 1994). Courts have taken a common-sense approach in assessing impracticability of joinder. Bradley v. Harrelson, 151 FRD 422 (MD Ala 1993).

In Robidoux v Celani, 987 F.2d 931, 935 (2d Cir. 1993) the appellate court held the district court erroneously ruled numerosity was absent, because plaintiffs had not shown the class to be so large that joinder was impossible. The standard of "impossibility" was held by the court to be incorrect. See also Smith v Baltimore & Ohio Rwy. Co., 473 F. Supp 572 (D Md 1979). Impracticability of joinder does not hinge on any one criteria but involves weighing a number of factors. United Brotherhood of Carpenters and Joiners of America Local 1899 v Phoenix Associates, Inc., 152 F.R.D. 518, 522 (SD W Va 1994).  

Those factors commonly considered follow in determining impracticability of joinder follow. The application of these factors is highly dependent on the specific facts underlying the controversy before the court. See McLlothin v Connors, 142 F.R.D. 626, 632 (WD Va 1992).

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[§11] Factors Considered in Determining Impracticability of Joinder

(1) Size of Class. As previously stated, impractiClass Action Litigationty of joinder is not determined by a numerical test alone. Ballard v Blue Shield of Southern West Va., Inc., 543 F.2d 1075, 1080 (4th Cir. 1976), cert. denied, 430 U.S. 922, 97 S.Ct 1341, 51 L.Ed 2d 601 (1977). A class consisting of as few as twenty-five to thirty members raises the presumption that joinder would be impractical. See EEOC v Printing Indus., 92 F.R.D. 51, 53 (DDC 1981).

Class actions have been found to meet the numerosity requirement with as few as eighteen members. See Cypress v Newport New General and Nonsectarian Hosp. Ass’n, 375 F.2d 648, 643 (4th Cir. 1967). The Supreme Court has stated, "[t]he numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations." Gen. Tel. Co. of the Northwest, Inc. v EEOC, 446 U.S. 318, 330, 100 S.Ct 1698, 64 L.Ed 2d 319 (1980). Plaintiffs need not demonstrate with precision the number of persons in the purported class to satisfy the requirements that joinder is impracticable where such a conclusion may be reached from reasonable estimates. See In re Kirschner Medical Corp Sec Litig, 139 F.R.D. 74, 78 (D Md 1991); Fitzgerald v Schweiker, 538 F. Supp 992, 1000 (D Md 1982).

(2) Geography of Individual Members. The greater the area in which the members of a class are geographically dispersed, the more impractical it is to join those class members in litigation. See Dameron v Sinai Hosp. of Baltimore, Inc., 595 F. Supp 1404, 1408 (D Md 1984) , aff’d in part and rev’d in part 815 F.2d 975 (4th Cir. 1987); In re Southeast Hotel Properties Limited Partnership Investor Litig, 151 F.R.D. 597, 601 (WDNC 1993). Widespread disbursement of class members mitigates toward the propriety of certification. Cf. United Brotherhood of Carpenters and Joiners of America Local 899 v Phoenix Associates, Inc, 152 F.R.D. 518, 522 (SD W Va 1994).

(3) Identity of Members Known v Unknown. When the plaintiff has demonstrated that the class of persons he or she wishes to represent exists, the fact that they are not specifically identifiable supports rather than bars the bringing of a class action because joinder is impracticable. Doe v Charleston Area Medical Ctr., Inc., 529 F.2d 638, 645 (4th Cir. 1975). Moreover, it is not necessary that the members of the class be so clearly and completely identified that any member can be presently ascertained. Haywood v Barnes, 109 F.R.D. 568, 576 (EDNC 1986).

(4) Ability to Institute Separate Actions. When individual lawsuits may not be practical due to economic or other concerns, certification is favored to provide those people a remedy otherwise inaccessible. Cf. South Carolina Nat Bank v Stone, 139 F.R.D. 325, 335 (DSC) (Absence of individual suits indicates putative class will not receive the protection they need unless case is certified). When class members are in a poor position to obtain legal redress because they are ill-informed or because such relief is disportionately expensive, certification is also favored. Gordon v Forsyth County Hosp. Auth., Inc., 409 F. Supp 708, 717 (MDNC 1976).

(5) Relief Sought. If the relief sought and to which class members may be entitled is uniform throughout the class, certification of the class is favored. Cf. Doe I v. Guardian Life Insurance Company of America, 145 F.R.D. 466, 471 (ND IL 1992) (Nature of the relief sought consideration in certification decision).

Courts do not not examine any one of the above factors in isolation but look to the totality of the circumstances. For instance, in Agostine v. Sidcon Corporation, 69 F.R.D. 437 (E.D. Pa. 1975), the court found that a class action was the superior way to proceed, based on the "modest size of the class, the relative ease by which the class may be ascertained, the lack of interest of members of the class in individually controlling separate actions, and the possibility of vindicating numerous small claims which otherwise might never be adjudicated." Id. at 448

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[§12] Common Questions of Fact or Law

An axiom of representative litigation is that some facts or some legal interest must be "common" to the group if there is to be "representation" to resolve the issue. A common question is one that arises from a "common nucleus of operative facts regardless of whether the underlying facts fluctuate over the class period and vary as to individual claimants." Haywood v Barnes, 109 F.R.D. 568, 577 (EDNC 1986).

For example, in cases involving challenges to allegedly illegal schemes, contracts or standardized written documents, courts have generally found certification is proper and a common nucleus of operative facts is present. See Molina v. Mallah Organization, Inc., 144 F.R.D. 37, 41 (SD NY 1992) (presence of claims related to alleged scheme on the part of defendants raises questions of law and fact common to the class). See also, Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998)(a FDCPA case wherein the court stated common nuclei of fact are typically manifest where the defendants have engaged in standardized conduct towards members of the proposed class by mailing them allegedly illegal form letters or documents); Kleiner v. First Nat'l Bank of Atlanta, 97 F.R.D. 683, 691 (ND Ga. 1983)("When viewed in light of Rule 23, claims arising from interpretations of a contract appear to present the classic case for treatment of a class action"); Heartland Communications, Inc. v. Sprint Corp., 161 F.R.D. 111 (D Kan 1995)(certifying class where contracts signed by all class members contained virtually the same provision as that challenged by the class representative); Pinkett v. Moolah Loan Corp., 1999 U.S. Dist. LEXIS 17276, No. 99 C 2700, 1999 WL 1080596, at *3 (N.D. Ill. Nov. 2, 1999) (

As stated by the court in Day v. NLO, Inc., 144 F.R.D. 330, 333 (SD Oh 1992), a mass tort case involving radioactive contamination:

Rule 23(a)(2) requires that there be 'questions of law or fact common to the class.' This requirement is satisfied 'as long as the members of the class have been affected by a general policy of the defendant, and the general policy is the focus of the litigation.' Sweet v. General Tire & Rubber Co., 74 F.R.D. 333, 335 (ND Oh 1976)(emphasis in original)

See also, Haywood v Barnes, 109 F.R.D. 568, 577 (EDNC 1986). Not every common issue will make a case suitable for certification. Rather, what is necessary for certification are common issues the resolution of which will advance the litigation. Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998). In cases involving the question of whether a defendant has acted through an illegal policy or procedure, commonality is readily shown because the common question becomes whether the defendant in fact acted through the illegal policy or procedure. For this reason, cases of that sort are often approved as class actions. See, e.g., Vels v. Premier Athletic Center of Plainfield, Inc., 182 F.R.D. 500 (WD Mich 1998).

A class action will often involve both questions common among the class membership and questions (such as damages in a personal injury lawsuit) individual to class members. Rule 23 does not require that every question of law or fact be common to every class member. See Haywood v Barnes, 109 F.R.D. 568, 577 (EDNC 1986); Port Auth. Police Benevolent Ass’n, Inc. v Port Auth. of New York and New Jersey, 698 F.2d 150 (2d Cir. 1983). As stated in Central Wesleyan College v W.R. Grace & Co., 143 F.R.D. 628, 636 (DSC 1992), affd, 6 F.3d 177 (4th Cir. 1993): "This subsection [23(a)(2)] does not require that all, or even most, issues be common, nor that common issues predominate, but only that common issues exist." See also Holsey v Armour & Co., 743 F.2d 199, 216-217 (4th Cir. 1984), cert denied, 470 U.S. 1028 (1985). Although differences among the class members are relevant under other Rule 23 requirements, differences among class members does not necessarily undermine commonality as long as the resolution of the common questions affects all or a substantial number of the members. Shipes v. Trinity Industries, 987 F.2d 311, 316 (5th Cir.), cert. denied, 510 U.S. 991, 126 L. Ed. 2d 450, 114 S. Ct. 548 (1993).

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[§12.1] Liberal Standard for Finding Commonality

Courts have routinely recognized that the commonality requirement is not high. Morris v. Transouth Fin. Corp., 175 F.R.D. 694, 697 (M.D. Ala 1997). See also Shipes v. Trinity Industries, 987 F2d 311, 316 (5th Cir. 1993) (Threshold requirements of commonality and typiClass Action Litigationty are not high). If a benefit may be achieved through class disposition, the rule requires only that the resolution of common questions affect all or most of the class members. Jenkins v Raymark Indus., 782 F.2d 468 (5th Cir. 1986). The keystone test is whether the benefits of class disposition will inure to the class were it to be certified. Cf. Stott v Haworth, 916 F.2d 134 (4th Cir. 1990). The commonality test is "qualitative rather than quantitative, that is, there need be only a single issue common to all members of the class." See In re American Medical Systems, Inc., 75 F 3d 1069 (6th Cir. 1996). See also, Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982)(The commonality test of Rule 23(a)(2) is met when there is "at least on issue whose resolution will affect all or a significant number of the putative class members). Just as common issues of law are not required for all class members, common issues of fact are not required to be present among all class members. Haywood v Barnes, 109 F.R.D. 568, 577 (EDNC 1986). Class actions may be certified on limited common issues of fact. Central Wesleyan College v W.R. Grace, 6 F.3d 177, 184 (4th Cir. 1993).

Dramatic differences may exist among class members as to the respective damages suffered by individual members. Varying damage levels rarely prohibit a class action if the class members' claims possess factual and legal commonality. Mayer v. Mylod, 988 F.2d 635, 640 (6th Cir. 1993)(in securities fraud action, commonality and typiClass Action Litigationty requirements are met even where some investors made money and some lost money because the questions of liability are common to all class members regardless of their level of damages); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1988)(in mass tort action, even though damages may be disparate, where liability can be determined on a class-wide basis because it arises from a single course of conduct that is identical for each plaintiff, class action is suitable for adjudication).

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[§13] TypiClass Action Litigationty: Named Plaintiff's Claims/Defenses Must be Typical of Class

Rule 23(a)(3) requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P., 23(a)(3). In other words, there must be a nexus between the class representative's claims or defenses and the common questions of fact or law that unite the class. See Kornberg v. Carnival Cruise Lines, Inc. 741 F.2d 1332 (11th Cir. 1984); Pickett v. IBP, Inc., 182 F.R.D. 647-49 (MD Ala. 1998). A sufficient nexus is established if the claims or defenses of the class and the class representatives arise from the same events or pattern or practice and are based on the same legal theory. Kornberg v. Carnival Cruise Lines, Inc. 741 F.2d at 1337.

In many ways, the commonality and typiClass Action Litigationty requirements of Rule 23(a) overlap. See Wolf Prado-Steiman v. Bush, 2000 U.S. App. Lexis 19181 (11th Cir. 2000). Both requirements focus on whether a sufficient nexus exists between the legal claims of the named class representatives and those of individual class members to warrant class certification. See Washington v. Brown & Williamson Tobacco Co., 959 F.2d 1566, 1569 n.8 (11th Cir. 1992). Traditionally, commonality refers to the group characteristics of the class as a whole and typiClass Action Litigationty refers to the individual characteristics of the named plaintiff in relation to the class. See Baby Neal v. Casey, 43 F.3d 48, 56 (3rd Cir. 1994). These requirements "serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156-57n.13, 102 S. Ct. 2364, 2370, 72 L. Ed. 2d 740 (1982).

Courts have uniformly held that a claim is typical if it arises from the same event or course of conduct giving rise to the claims of other class members and is based on the same legal theory. E.g., De La Fuente v. Stokley-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983); Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir.), cert. denied, 429 U.S. 870, 50 L. Ed. 2d 150, 97 S.Ct. 182 (1976); Dornberger v. Metropolitan Life Insurance Co., 182 F.R.D. 72 (SDNY 1998); Dura-Bilt Corp. v. Chase Manhattan Bank, 89 F.R.D. 87, 98 (SDNY 1981). This requisite for typiClass Action Litigationty guarantees that the class representatives share issues common to other class members. Harriston v Chicago Tribune Co, 992 F2d 697, 703 (7th Cir. 1993). (To have standing to sue as a class representative, the plaintiff "must be part of the class and possess the same interest and suffer the same injury as the class members.") See also, General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 156, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982). If, by advancing their own interests, the named plaintiffs also advance the interests of the proposed class, then the typiClass Action Litigationty requirement will have been met. Green v. Wolf Corp., 406 F.2d 291, 299 (2d Cir. 1968), cert. denied, 395 U.S. 977, 23 L. Ed. 2d 766, 89 S. Ct. 2131 (1969).

The issue is whether the named plaintiffs suffer the same sort of injuries, and possess sufficient similarity of interests to the absent class members, to make them proper class representatives. See AKS v Bennett, 150 F.R.D. 187, 191 (D Kan 1993). Plaintiffs who purport to represent a class "must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." Simon v Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 40 n 20, 96 S.Ct 1917, 48 L.Ed 2d (1976), quoting Warth v Seldin, 442 U.S. 490, 502, 95 S.Ct 2197, 2207, 45 L.Ed 2d 343 (1975). TypiClass Action Litigationty exists so long as the claims are based on the same legal or remedial theory and no conflict of interest exists between the named plaintiff and the class members. Meredith v Mid-Atlantic Coca Cola Bottling Co, 129 F.R.D. 130, 133 (ED Va 1989).

The typiClass Action Litigationty test does not require that the representatives have claims identical to other members of the class. See Bates v Tenco Services, Inc. 132 F.R.D. 160, 163 (DSC 1990). Factual Variations between claims will not defeat typiClass Action Litigationty. Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 923 (3d Cir. 1992); Meredith v Mid-Atlantic Coca Cola Bottling Co, 129 F.R.D. 130, 133 (ED Va 1989). Moreover, "even relatively pronounced factual differences will generally not preclude a finding of typiClass Action Litigationty where there is a strong similarity of legal theories." Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1994).

Questions of typiClass Action Litigationty focus on the similarity of the legal and remedial theories of the claims of the named and unnamed plaintiffs. TypiClass Action Litigationty refers to the nature of the claim or defense of the class representatives, and not the specific facts from which it arose, or the relief sought. The test of typiClass Action Litigationty is whether other members have the same or similar injury, whether the action is based on conduct that is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. Hanon v Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992).

"While it is settled that the mere existence of individualized factual questions with respect to the class representative's claim will not bar class certification, class [*19] certification is inappropriate where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation." Baffa v. Donaldson, Lufkin & Jenrette Securities Corp., 2000 U.S. App. LEXIS 22162 at *18 -19 (2d Cir. 2000) quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir. 1990) (internal citation omitted).

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[§14] Adequacy of Representation

The adequacy and typiClass Action Litigationty requirements "serve as guideposts for determining whether maintenance of a class action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231, 2251 n. 20, 138 L. Ed. 2d 689 (1997) (quotation omitted). These issues are committed to the trial court's discretion. "A district court has broad discretion in determining whether to certify a class, and its determination will not be overturned absent a showing that it abused its discretion." Gilbert v. City of Little Rock, 722 F.2d 1390, 1399 (8th Cir. 1983), cert. denied, 466 U.S. 972, 80 L. Ed. 2d 820, 104 S. Ct. 2347 (1984).

It is an essential prerequisite to the right to maintain a class action under Rule 23 that the court be certain the representatives will fairly and adequately protect the interests of the class. Hill v Western Electric Co., 672 F.2d 381, 388 (4th Cir.), cert denied, 459 U.S. 981, 103 S.Ct 318, 74 L.Ed 2d 294 (1982). Adequacy of representation by a plaintiff is ultimately a question of fact with respect to which the plaintiff must bear the burden of proof. Predmore v Allen, 407 F. Supp 1053, 1064 (D Md 1975). The adequacy standard is met if: (1) the named plaintiff has interests common with, and not antagonistic to, those of absent class members; and (2) the plaintiff’s attorney is qualified, experienced and generally able to conduct the litigation. Sosna v Iowa, 419 U.S. 393, 403, 95 S.Ct 553, 42 L.Ed 2d 532 (1975).See also, Taylor v. Flagstaff Bank, 181 F.R.D. 509 (ND Ala 1998); Kuper v. Quantum Chemical Corp., 145 F.R.D. 80, 82 (SD Oh 1992)(Both attorney and representative are considered on question of adequacy); Baffa v. Donaldson, Lufkin & Jenrette Securities Corp., 2000 U.S. App. LEXIS 22162 at *22 (2d Cir. 2000); In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992).

Adequacy of representation is not dictated by the number of plaintiffs named in the complaint, but the quality of the representation the named plaintiff or plaintiffs provide. As the number of named plaintiffs increases, so does the burden on counsel in the discovery phase of the case. Further, an excessive number of named plaintiffs can actually serve to complicate the proceedings and diminish adequacy. See Chill v. Green Tree Financial Corp., 181 F.R.D. 398 (D. Minn 1998); In re Ford Motor Co. Bronco II Product Liability Litig., 177 F.R.D. 360, 367 (ED La. 1997); Gill v. Monroe County Dept. of Social Services, 79 F.R.D. 316, 330 (W.D.N.Y. 1978)(finding existence of 28 named plaintiffs would unnecessarily complicate proceedings, and directing plaintiffs to reduce their number).

Generally, the adequacy of plaintiffs’ counsel will be presumed in the absence of evidence to the contrary. However, in deciding the adequacy of plaintiffs' counsel, the court may consider the reputation of the attorneys and their respective firms. See Johns v. DeLeonardis, 145 F.R.D. 480, 484 (ND IL 1992). The court may also consider the quality of representation observed to have been provided by counsel seeking appointment. See Applewhite v. Reichold Chemicals, Inc., 67 F.3d 571 (5th Cir. 1995)(Court denied certification upon finding inadequate representation by plaintiffs’ counsel. Specifically, the court stated,"[O]missions in the plaintiffs’ appellate brief, as well as counsel’s conduct below, counsels against a finding that the class would be adequately represented"); Dornberger v. Metropolitan Life Insurance Co., 182 F.R.D. 72 (1998)(record revealed no indication of inadequacy on part of plaintiffs' counsel who had diligently prosecuted the case to date and must continue to do so). Finally, the actions taken by the purported class counsel in an ostensible class in prior actions may justifiably be considered by the court in making a determination as to whether such counsel may be "adequate" in a pendign case. For instance, in Greisz v. Household Bank (Illinois), N.A., 176 F.3d 1012 (7th Cir. 1999), the Court made the following observations:

Mr. Longo's extensive but inept and wholly unsuccessful efforts to conduct class actions have drawn unusually pointed criticisms from Illinois state judges. In one case the judge called the complaint drafted by Longo (which had already been amended four times) the "lousiest complaint I've ever read" in twenty years on the bench, and added that "I wouldn't want to be in a class action where you were representing the Plaintiff." Longo has several times sought to file Truth in Lending class actions with his own relatives as the named plaintiffs, which is of course improper. E.g., Susman v. Lincoln American Corp., 561 F.2d 86, 95 (7th Cir.1977); Turoff v. May Co., 531 F.2d 1357, 1360 (6th Cir.1976) (per curiam). He has filed untimely appeals, failed to protect the right of clients to opt out of doomed class actions, engaged in flagrant forum shopping, made exorbitant settlement demands, filed frivolous motions, displayed a lack of familiarity with procedural rules--and in the end always lost. In Urso v. United States, 72 F.3d 59 (7th Cir.1995), we criticized him on multiple grounds, while in Estate of Henry, by Henry v. Folk, 285 Ill.App.3d 262, 220 Ill.Dec. 831, 674 N.E.2d 102, 103 (1996), the court noted that he had attempted to serve process on a saloon by leaving a copy of the summons with one of the saloon's customers. In one of his class actions, he sent a nonlawyer to appear in his stead at oral argument, and in the same case he filed a motion to jail the opposing counsel for nonexistent discovery abuses. Acting as his own lawyer in a consumer-protection case, the field of his claimed expertise, he not only lost the case but was sanctioned for his incompetent handling of the litigation. See Longo v. AAA-Michigan, 201 Ill.App.3d 543, 155 Ill.Dec. 450, 569 N.E.2d 927 (1990); Longo v. Michel, 1993 WL 476967 (6th Cir.1993) (per curiam); Longo v. Glime, 1991 WL 32356 (6th Cir.1991) (per curiam). We are about to see that he has sacrificed the interests of the named plaintiff in this case to his desire to keep the case going in the forlorn hope that it might somehow, someday fly as a class action. Given Longo's track record, the district judge was clearly right to refuse to let the suit proceed as a class action.

Adequacy of representation does not require the named representatives have unique ability or complete understanding of the legal issues. See Randle v. G C Services, L.P., 181 F.R.D. 602 (ND Ill 1998); South Carolina Nat Bank v Stone, 139 F.R.D. 325, 329 (DSC 1991); McGlothlin v Connors, 142 F.R.D. 626, 634 (WD Va 1992); Adair v. Sorenson, 134 F.R.D. 13, 19 (D Mass. 1991)(Holding that a class representative "need not have knowledge of all the relevant facts to be an adequate representative). Although the representative plaintiffs did not possess detailed substantive knowledge regarding the nature of their lawsuit, the court in Haywood v Barnes, 109 F.R.D. 568, 579 (EDNC 1986), found the following elements demonstrated their adequacy as class representatives.

  • They shared a common interest with the putative class members.
  • Each named plaintiff had a personal financial stake in the suit.
  • The named plaintiffs regularly consulted with their counsel.
  • The named plaintiffs responded to discovery demands.
  • The named plaintiffs appeared for deposition.
  • All named plaintiffs supported the certification motion.
  • There was no showing of inability of named plaintiffs to make decisions required to protect the class.
  • All of the named plaintiffs indicated familiarity with the practices challenged.
  • There was no showing the named plaintiffs were unwilling to pursue the action or that they would disregard their obligation or duties as class representatives.
The Supreme Court has rejected insufficient knowledge of the named plaintiff as a basis for denying class certifications. In Surowitz v Hilton Hotels Corp, 383 U.S. 363, 86 S.Ct 845, 15 L.Ed 2d 807 (1996) the plaintiff was uneducated generally, illiterate in economic matters, and demonstrated in her oral testimony she knew nothing about the content of the suit. Despite the plaintiff’s ignorance, the Supreme Court found no evidence of collusive conduct or trickery and reversed the appellate court’s dismissal of the suit. See Meridith v Mid-Atlantic Coca Cola Bottling Co., 129 F.R.D. 130, 133 (ED Va 1989). See 2000 U.S. App. LEXIS 22162 at *25 (2d Cir. 2000) ("The Supreme Court in Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 370-374, 15 L. Ed. 2d 807, 86 S. Ct. 845 (1966) expressly disapproved of attacks on the adequacy of a class representative based on the representative's ignorance.")

It has been stated that the class must have a "conscientious representative plaintiff." Rand v. Monsanto Co., 926 F.2d 596, 599 (7th Cir. 1991). The class representative should understand the basic facts underlying his claims. In re Discovery Zone Sec. Litig., 169 F.R.D. 104, 109 (ND Ill. 1996). "General knowledge and participation in discovery are sufficient to meet this standard." Id. In demonstrating a class representative's adequacy, the burden is not a heavy one. In re: CBC Companies, Inc., 181 F.R.D. 380 (ND Ill. 1998). However, under Rule 23(a)(4), a class representative must "fairly and adequately protect the interests of the class." Thus, class representative status may properly be denied "where the class representatives have so littleknowledge 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).

The role of class representatives, and the manner in which their activities interface with the question of adequacy was recently discussed in In Re: Diet Drugs (PHENTERMINE, FENFLURAMINE, DEXFENFLURAMINE) Products Liability Litig., MDL NO. 1203, 2000 U.S. Dist. LEXIS 12275 *158-59 (E.D. Pa August 28, 2000) as follows:

With regard to the classrepresentatives, the Objectors' chief complaint is that they were inactive and that three of the five were replaced. In a massive class action, however, "it iscounsel for the class who has the laboring oar. The class representatives furnish the factual basis to invoke jurisdiction of the court and provide the outline of the controversy, but the lawyers shape the claims . . . by the compilation of factual and expert testimony and the presentation of . . . evidence." Goodman v. Lukens Steel Co., 777 F.2d 113, 124 (3d Cir. 1985). The class representatives are not expected to have detailed knowledge or participate [*158] integrally in complex settlement negotiations. See Lewis v. Curtis, 671F.2d 779, 789 (3d Cir. 1982) (stating that "adequacy of representation test is not concerned with whether plaintiff personally derived the information pleaded in the complaint or whether he will personally be able to assist his counsel"); Greenfield v. Villager Indus., Inc., 483 F.2d 824, 832 n.9 (3d Cir. 1973) (stating that "experience teaches that it is counsel for the class representative and not the named parties, who direct and manage these actions .. . [and that] every experienced federal judge knows that any statement to the contrary is sheer sophistry"). Nor does replacement of class representatives destroy adequate representation of the class. See e.g., Kremens v. Bartley, 431 U.S. 119, 134-35, 52 L. Ed. 2d 184, 97 S. Ct. 1709 (1977) (remanding action to district court, for, among other things, substitution of class representatives with live claims); Schlick v. Penn-Dixie Cement Corp., 551 F.2d 531, 533 (2d Cir. 1977) (recognizing court's ability to substitute class representative if it finds named plaintiff "to be in a conflicting [*159] or untenable position either for the conduct of the trial or settlement").

A. Factors Considered

Factors a court should consider in determining adequacy of representation include determining whether the named plaintiffs have positions which would be antagonistic to those of the unnamed class members. Pruitt v Allied Chemical Corp., 85 F.R.D. 100, 105 (ED Va 1974). The court may also consider the extent to which other class members support the representative parties. McGlothlin v Connors, 142 F.R.D. 626, 633 (WD Va 1992). The plaintiffs should recognize their responsibilities to the class, and plaintiffs’ counsel should be generally experienced in and able to handle the type of litigation before the court. The court must consider the abilities of both the attorneys who represent the class representatives and the class representatives themselves. Carpenters Loc. 899 v Phoenix Assoc., 152 F.R.D. 518, 523 (SD W Va 1994).

The named plaintiff should not have facially weak claims. Under Rule 23, the class representative's claim must be typical of the claims of the class, and the representative must be adequate. Robinson v. Sheriff of Cook County, 1999 U.S. App. Lexis 1801 (7th Cir. February 8, 1999); Fed. R. Civ. P. 23(a)(3) & (4). The first of these requirements is really an aspect of the second; if his claim is atypical, he is not likely to be an adequate representative; his incentive to press issues important to other members of the class will be impaired. Id. Further, if when class certification is sought it is already apparent that the class representative's claim is extremely weak, the very weakness of the claim forms an independent reason to doubt his ability to adequately represent the class. Id. To judge the adequacy of representation, courts may consider the honesty and trustworthiness of the named plaintiff. Kline v. Wolf, 702 F.2d 400, 402-03 (2d Cir. 1983) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 549-50 (1949).

A common defense tactic to challenge adequacy is to challenge the ability of the named plaintiffs to fund the litigation through their personal finances. Various courts have concluded that the personal finances of class action plaintiffs are not a relevant area of inquiry where the court is otherwise satisfied the costs of notice and the litigation will be met. Sanderson v. Winner, 507 F.2d 477, 479-80 (10th Cir. 1974).

B. Application to Defendant Class Actions

In a defendant class action, absent class members are entitled to the same protections as to adequacy of representation as absent class members in a plaintiff class action. Adequacy of representation is required for due process protection. See Kerney v. Fort Griffin Fandangle Ass'n, Inc., 624 F.2d 717 (5th Cir. 1980).

C. Effect Where Representative Inadequate

Due process requires absent class members be adequately represented. Phillips Petroleum Co. v Shutts, 472 U.S. 797, 808, 812, 105 S.Ct 2965, 86 L.Ed 2d 628 (1985). Failure to adequately represent such members will leave the class action proceedings vulnerable to collateral attack. A court determination of inadequacy does not necessarily require dismissal of the suit. The court may, in furtherance of the substantive goals at stake in the particular suit, cause representation to become adequate by redefining the class. Cf. Long v Robinson, 436 F.2d 1116 (4th Cir. 1971). The court also has the power to permit substitution of a proper plaintiff if the named plaintiff is found inadequate. Int’l. Woodworkers of America, AFL-CIO v Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1270 (4th Cir. 1981); Dameron v Sinai Hosp. of Baltimore, 559 F. Supp 1404, 1409 (D Md 1984); Davis v Bethlehem Steel Corp., 600 F. Supp 1312, 1325 (D Md 1985).

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[§14.1] Adequacy: Conflicts of Interest Among Class Members

In order for the class representatives to provide adequate representation, the named plaintiffs' claims and the class claims must be interrelated so that the interests of the class members will be fairly and adequately protected in their absence of being named parties. General Tel. Co. v. Falcon, 457 U.S. 147, 157 n.13, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982). If there is a conflict of interest between different groups of class members and the named representatives as to the relief that should be sought under the circumstances, class certification is improper. Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998). The Supreme Court has long interpreted the adequate representation requirement of Rule Rule 23(a)(4) to preclude class certification under such circumstances. Amchem Prods., Inc. v. Windsor, 138 L. Ed. 2d 689, 117 S. Ct. 2231, 2250-51 (1997); General Tel. Co. v. EEOC, 446 U.S. 318, 331, 64 L. Ed. 2d 319, 100 S. Ct. 1698 (1980); Kidwell v. Transportation Communications Int'l Union, 946 F.2d 283, 305-06 (4th Cir. 1991).

The Supreme Court "has repeatedly held [that] a class representative must be part of the class and 'possess the same interest and suffer the same injury' as the class members." East Texas Motor Freight Sys. Inc. v. Rodriguiez, 431 U.S. 395, 403, 52 L. Ed. 2d 453, 97 S. Ct. 1891 (1977)(quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216, 41 L. Ed. 2d 706, 94 S. Ct. 2925 (1974)). The premise of a class action is that litigation by representative parties adjudicates the rights of the class members, so due process requires that named plaintiffs possess undivided loyalties to absent class members. See e.g., In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 785, 796 (3d Cir. 1995)(abrogated in part on another issue by Amchem Prods., Inc. v. Windsor, 138 L. Ed. 2d 689, 117 S. Ct. 2231, 2250-51 (1997)). "The problem of actual and potential conflicts is a matter of particular concern in a Rule 23(b) class because absent class members are not permitted to opt out of such litigation. Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998)(class decertified upon finding that conflicts existed among absent class members).

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[§15] Adequacy: Practical Considerations

A dependable plaintiff is essential to the representation of the class. Prior to filing the complaint, counsel may find it advisable to meet with the class representatives, to review the factual basis for the claims asserted, and to explain the allegations in the complaint. The named plaintiffs should understand that they have fiduciary responsibilities to the class, and they cannot use their position as named plaintiffs to leverage a settlement for themselves to the detriment of the class.

The named plaintiffs should express a willingness to participate in all demands made of them for discovery. They should understand that their position will likely require them to be available for deposition, to respond in a timely manner to interrogatories, requests for admission, or any other proper demand for discoverable information. They should understand that they may be called to testify in court at any certification or fairness hearing, or potentially at a trial of the merits. In fact, if the case is tried they should understand you will demand they be present, in court, every day the action proceeds. They should also understand the significance of the attorney-client relationship and the need for confidentiality as to privileged matters. While the case proceeds, they should not publicly express opinions on the value of the case or the problems brought to their attention.

There is no magic number of class representatives needed to meet the adequacy requirement. Adequacy is not based on the quantity of representatives in a case. Rather, adequacy is a function of the quality of representation provided. In fact, an excessive number of named plaintiffs can create management problems and unwieldliness that the class action process is intended to prevent. See In re Ford Motor Co. Bronco II Product Liability Litig., 177 F.R.D. 360, 367 (ED La. 1997)(fact that there are 120 named plaintiffs diminishes adequacy); Gill v. Monroe County Dept. of Social Services, 79 F.R.D. 316, 330 (WDNY 1978)(finding existence of 28 named plaintiffs would unnecessarily complicate proceedings, and directing plaintiffs to reduce their number). See also, Chill v. Greentree Financial Corp., 181 F.R.D. 398 (D Mn 1998)(Ordering counsel to reduce the number of named plaintiffs to twenty).

Moreover, counsel should keep in mind that for every named plaintiff, there will be in all likelihood at least one set of interrogatories, a deposition, a demand for production of documents, and potentially one or more ancillary motions related to discovery or adequacy As the number of class representatives increases, there is an exponential increase in the burden of discovery management for plaintiffs' counsel. Moreover, the bottom line is one good class representative is far better than ten questionable representatives.

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