The Federal Class Action Practice Manual

© 1999 Timothy E. Eble

Form 1: Class Actions Prefiling Considerations Checklist

  1. Prefiling investigation and organization
    1. Review underlying facts with client to determine the nature of his claims.
    2. Determine whether there is a common nucleus of operative facts applicablet o many other people.
    3. Determine whether the wrong or injury complained of has occurred on a class wide basis.
    4. Determine which facts are likely to be common and which facts are likely to be individual in nature.
    5. Determine whether there is a common issue or issues of law.
    6. Determine the geographic locations of the place where injury occurred to the class.
    7. Review proposed representatives’ claims to determine whether they would be subject to unique defenses not generally applicable to the class.
    8. Discuss responsibilities and obligations of class representatives with them before filing.
    9. Discuss theories of liability and claims set forth in proposed complaint with class representatives. Have the plaintiffs read draft complaint.
    10. If prosecution of separate actions would create a risk of inconsistent or varying adjudications or would establish incompatible standards of conduct, review for possible inclusion of claims under Rule 23(b) (1)(A).
    11. If there is a "limited fund" situation, or a potential that an individual member’s suit could be dispositive of nonparty claims, review for possible inclusion of claims under Rule 23(b)(1)(B).
    12. If an injunction may be required to remediate a condition or pattern of conduct, such claims should be considered as a possible Rule 23(b)(2) demand for injunctive relief.
    13. If monetary relief and class wide damages are likely to the focus of the lawsuit, claims should be considered for filing pursuant to Rule 23(b)(3).
    14. Review class action for manageability prior to filing and anticipate opposing parties’ defenses.
    15. Review local rules of practice.

  2. Prerequisites - Drafting of Complaint
    1. Allege venue and federal court jurisdiction
    2. Allege class is so numerous that joinder is impracticable.
    3. Allege common questions of law or fact, and assert "common" issues in complaint.
    4. Allege claims and defenses of class representatives are typical of the class.
    5. Allege parties and their counsel will fairly and adequately protect the interests of absent class members.
    6. Set forth grounds upon which certification is demanded. Section (b)(1), (b)(2) and/or b(3).
    7. Include prayer for relief.
    8. Consider jury v. nonjury trial. Demand jury trial or not?
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