Combing Claims in Federal Class Action 

Class Action Attorneys Handling Federal Cases Throughout the U.S.

Class actions are perhaps the best-known way in which a large number of similar claims can be treated collectively. Not only mass torts but antitrust and securities litigation are often brought as class actions, where one person or small group of persons who share a similar claim with a very large group of other persons act as the representative of that group, or “class,” in a collective court proceeding. 

This class representative will represent the class all the way through trial or settlement. The results that the representative obtains bind the entire class. For a class action to proceed, the class’s claims must be similar enough that it is proper to treat them as the same claim and treat all the members of that group as a class. In addition, the class representative must be shown to be a good representative of the class’s interests and not just his or her own interests. 

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Federal Class Actions 

Federal class actions are governed by Federal Rule of Civil Procedure 23, though many states also have their own similar procedures. Rule 23(c) provides that a putative class complaint must include not only allegations for the plaintiffs specifically named in the complaint but also allegations that apply to the larger class. The attorney seeking to represent the class then must move for class certification “at an early practicable time.” If the court denies certifying the class, the individual plaintiff’s case can proceed as a normal complaint for the named plaintiff, but it will not be a class action.

The motion to certify must define the class and the class claims, issues, and defenses, and should explain why the proposed class meets the criteria for being a class. The motion will also propose who the class counsel should be. If the court grants that motion, it will issue an order defining the class, listing the class issues, and identifying the class counsel. Thereafter, all people who fit the class definition are part of the class and are bound by the results of the litigation.  

4 Requirements for Class Certification

There are four fundamental requirements for class certification — numerosity, commonality, typicality, and adequacy of representation.  

1. Numerosity means the class must be so large that it would be impractical to join them all individually. 
2. Commonality means the members of the class must share questions of fact or law.  
3. Typicality means the proposed representative of the class must have claims typical of the class. 
4. Adequacy of representation means the proposed representative must be in a position to adequately and fairly represent the interests of the entire class. 

3 Types of Classes

If the proposed class passes those initial tests, the court must next find that the class fits into one of three specific categories of classes. 

• First, there are classes meant to protect defendants from inconsistent duties to claimants. 
• Second, there are classes where claims can be resolved by injunctive relief. 
• Finally, there are cases where common questions of law or fact predominate over any individual questions.   

Notice to class members only must be given after the class is certified, but Rule 23 makes it clear that all class members must then receive “the best notice that is practicable.” The court requires the plaintiffs’ class counsel to identify individual class members to the extent possible and then give the notice that the court directs. In classes certified because the common issues predominate (Rule 23(b)(3) classes), the rule specifies that each class member is notified about the details of the claims, that each class member may have his or her own attorney enter an appearance, and must be informed of how to opt-out of the class. 

This last type of class, one where common issues predominate, goes beyond the mere commonality of issues. These common issues need to be the only really significant issues in the claims. There are often, however, claims where some aspects of the class’s claims are more individualized, such as damages. That would make it impossible to treat the entirety of the putative class members’ claims in a single class. However, there is another part of the class action procedure, the creation of subclasses, that can relax the strict boundaries the “predominance” requirement creates. The class may be divided into subclasses, not only of claimants but also subclasses that deal only with specific common issues. Dividing the classes into more limited subclasses makes it possible to resolve some common issues while leaving others for individual case resolution. 

One type of limited class, the “settlement class,” has proved particularly useful. Rule 23(e) governing class actions explicitly refers to “a class proposed to be certified for purposes of settlement.” Settlement classes are certified simply to approve a previously negotiated settlement. This kind of limited class is brought not to try cases but used only to settle them en masse by approving a previously negotiated settlement. Counsel already will have negotiated a settlement and only then seek to have the class certified. For the settlement to be effective and the class to be approved, the court must approve that settlement. Indeed, the court always must approve any settlement of a class action.