The Federal Class Action Practice Manual
Chapter 3: Factors Affecting Propriety of Certification
[§16] Presence of a Common Nucleus of Operative Facts
The presence of a common nucleus of operative facts among class members mitigates toward class certification. 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). It is also usually enough to satisfy the commonality requirement of Rule 23(a)(2). Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998); Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). Common nuclei of fact are typically manifest where the defendants have engaged in standardized conduct towards members of the proposed class. See Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 308 (ND Ill 1995)(citing cases). See also, Kleiner v. First Nat'l Bank of Atlanta, 97 F.R.D. 683, 691 (ND Ga 1983); Heartland Communications, Inc. v. Sprint Corp., 161 F.R.D. 111 (D Kan 1995). Factual variations among class members as to their grievances do not defeat a class action. See Patterson v. General Motors Corp., 631 F.2d 476, 481 (7th Cir. 1980).
The focus of the commonality requirement in a plaintiff class action must be on whether the fact to be proved is common to all members of the class, not whether it is common to all defendants. See Central Wesleyan College v W.R. Grace & Co., 143 F.R.D. 628, 636 (DSC 1992), affd 6 F3d 177 (4th Cir. 1993); see also, Johns v DeLeonardis, 145 F.R.D. 480, 483 (ND Ill 1993) (In granting certification the court stated, "Here there can be no doubt that a common core of operative facts gave rise to common legal questions in the plaintiffs claims"). The "commonality" requirement of Rule 23(a)(2) is generally satisfied where the plaintiff shows the existence of a "common nucleus of operative facts." Jaroslawics v Safety Kleen Corp., 151 F.R.D. 324, 327 (ND Ill 1993).
[§16.1] Single Course of Conduct as Cause of Disaster
Cases resulting in injury to persons or property will often arise from a single or uniform course of conduct by a tortfeasor. "Where the defendants' liability can be determined on a class-wide basis because the cause of the disaster is a single course of conduct which is identical for each of the plaintiffs, a class action may be the best suited vehicle to resolve such a controversy." Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1197 (6th Cir. 1988). In Sterling, the Sixth Circuit affirmed class certification in a suit for personal injuries and property damage due to contamination of plaintiffs' wells by chemicals which escaped from defendants' toxic was burial site. The Sixth Circuit noted the "increasingly insistent need for a more efficient method of disposing of a large number of lawsuits arising out of a single disaster or a single course of conduct. Id.Back to Top
[§16.2] Requests for Joint Relief that Inures to Benefit of all Class Members
The finding that joint relief may inure to the benefit of all class members strongly mitigates toward certification. If the class members properly request joint relief for an injury or harm, common questions will almost invariably be present. Rule 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 Holsey v Armour & Co., 743 F.2d 199, 216-217 (4th Cir. 1984), cert denied, 470 U.S. 1028, 105 S.Ct 1395, 84 L.Ed 2d 784 (1985). If a question of law, its applicability or effect is generally common among the class representatives and the absent class members, certification is favored. Cf. Class Action Litigationfano v Yamasaki, 442 U.S. 477, 481, 99 S.Ct 2432, 61 L.Ed 2d 176 (1979).
[§17] Financial Circumstances and Incentives of Absent Class Members
If actual damages of class members are small, they may have little incentive -- and quite possibly lack the means -- to litigate their claims individually. In such circumstances, a class action may best resolve the issue by permitting them an opportunity to air their common grievances in a single proceeding. Peoples v. Wendover Funding, Inc. 179 F.R.D. 492, 500 (D. Md 1998). Secondly, certification may best serve efficiency under such circumstances "because the class action provides a large group of litigants an opportunity to adjudicate their common claims in a single lawsuit where the costs of discovery, motions and trial would dissuade many of them from asserting their rights." Brewer v. Friedman, 152 F.R.D. 142, 144 (ND Ill. 1993).
[§18] Manageability Concerns
The determination of class manageability is a matter for the trial court's discretion. King v. Kansas City Southern Industries, Inc., 519 F.2d 20, 25 (7th Cir. 1975). In order to determine the propriety of certification, the court should consider the substantive law issues which will control the outcome of the litigation. Alabama v. Blue Bird Body, 573 F.2d 309, 316 (5th Cir. 1978). The substantive law issues involve an examination of variations in state law when a class action involves multiple jurisdictions. Castano v. American Tobacco, 84 F.3d 734, 741 (5th Cir. 1996). Also, the court in determining manageability should consider the potential difficulties in notifying class members of the suit, calculation of individual damages, and distribution of damages. Maguire v. Sandy Mac, Inc., 145 FRD 50 (D NJ 1992).
If the laws of numerous states are dissimilar and would by necessity have to be analyzed and applied to the claims of individual class members, courts may hesitate to certify a class due to manageability concerns. See Ikonen v Hartz Mountain Corp., 122 F.R.D. 258 (SD Cal 1988). On the other hand, variations in state law are often manageable and the more prudent course for the court to follow is to manage such variations by the creation of subclasses. See Central Wesleyan College v W.R. Grace & Co., 143 F.R.D. 628, 643 fn. 20 (DSC 1992), aff'd, 6 F.3d 177 (4th Cir. 1993).Back to Top
[§18.1] Presence of Counterclaims Alleged by Defendant
The party opposing certification may contend that class certification is inappropriate, not only because the establishment of actual damages will create a plethora of individualdamages issues, but also because many of the plaintiffs claims are subject to"other defenses and counterclaims" which will require individual treatment. Potential counterclaims do not defeat class certification. See Davis v. Cash For Payday, Inc., 193 F.R.D. 518, No. 00 C 34, 2000 WL 639734, at *2 (N.D. Ill. Apr. 26, 2000) (citing Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1164-65 (7th Cir. 1974)); Pinkett v. Moolah Loan Corp., 1999 U.S. Dist. LEXIS 17276, at *14 No. 99 C 2700, 1999 WL 1080596, at *3-4 (N.D. Ill. Nov. 2, 1999) ("It is well established that individual counterclaims or defenses do not render a case unsuitable for class certification.").
However, issues in "litigation respecting individual counterclaims which if successful, would only reduce damage awards; and would not affect a finding on liability," Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1165 n.4 (7th Cir. 1974), should not form a basis for denial of certification. See generally Channell v. Citicorp Nat. Services, Inc., 89 F.3d 379, 386-87 (7th Cir. 1996) (indicating that debt collection counterclaims do not defeat class certification). In light of these authorities, courts ordinarily should not find ' arguments opposing certificaiton on this point persuasive. Taylor v. Halstead Financial Services, LLC, 2000 U.S. Dist. LEXIS 384 (ND Ill January 14, 2000). Thus, the specter of potential counterclaims orset offs are not a bar to certification. Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1165 n. 4 (7th Cir. 1974); Cox v. Joe Rizza Ford, Inc., 1996 U.S. Dist. LEXIS 1581, No. 94 C 5688, 1996 WL 65994, at *9, (N.D. Ill. Feb. 8, 1996
[§19] Requests for Joint Relief
Requests for joint relief generally connote that economies of class action litigation exist in fact. Thus, if a singular ruling as to the viability, applicability or effect of a legal issue is common to the class, certification is favored.