Class Action Certification (Rule 23)

Class action certification under Federal Rule of Civil Procedure 23 allows a representative plaintiff to litigate on behalf of a class of similarly situated individuals. Certification requires meeting all four prerequisites of Rule 23(a) and at least one of the three types specified in Rule 23(b).

The four Rule 23(a) prerequisites are: numerosity (the class is so numerous that joinder of all members is impracticable), commonality (there are questions of law or fact common to the class), typicality (the claims or defenses of the representative parties are typical of those of the class), and adequacy of representation (the representatives will fairly and adequately protect the interests of the class). The Supreme Court in Wal-Mart Stores v. Dukes heightened the commonality requirement, holding that common questions must be capable of generating common answers apt to drive the resolution of the litigation.

Rule 23(b) provides three types of class actions. A 23(b)(1) class is certified when individual adjudications would create a risk of inconsistent standards for the defendant or would impair the interests of other class members. A 23(b)(2) class is appropriate when the defendant has acted on grounds generally applicable to the class, making injunctive or declaratory relief appropriate for the class as a whole. A 23(b)(3) class, the most common type for damages actions, requires that common questions predominate over individual ones and that a class action is superior to other methods of adjudication.

The Supreme Court has imposed a rigorous analysis at the certification stage. In Amchem Products v. Windsor, the Court held that a settlement class still must satisfy Rule 23 requirements and cannot sacrifice the interests of absent class members for the benefit of the settling parties. Courts must conduct a searching inquiry into the merits to the extent necessary to determine whether the Rule 23 requirements are met, though certification is not a ruling on the ultimate merits.