Class Action Certification Adequate Representation Requirement Under Rule 23(a)
The Defending Class Actions: Certification Under Rule 23 – Part II
The Adequate Representation Requirement of Rule 23(a)
In defending a class action, the single most important motion facing a defendant is the plaintiffs motion to certify a class. Rule 23(a) requires that the plaintiff demonstrate numerosity, commonality and typicality, and that the class members will be adequately represented, and must additionally demonstrate that the action satisfies Rule23(b). The class action requirements of Rule 23 are mandatory. Thus, class certification requires that the prospective class representative satisfy the elements set forth in Rule 23(a), as well as the elements of Rule 23(b) (discussed in a separate article) be met. General Telephone Co. of Southwest v. Falcon, 457 U.S. 152, 102 S.Ct. 2364 (1982) (reversing class certification for failure to analyze Rule 23 requirements). This article discusses the adequate representation requirement of Rule 23(a).
Rule 23(a)(4) of the Federal Rules of Civil Procedure provides that a class action may not be maintained unless the representative parties will fairly and adequately protect the interests of the class. At the end of this article, we briefly discuss issues of the criminal record and/or credibility of the proposed class representative, and the effect on class certification. In brief, such issues may be relevant because unlike numerosity and commonality, which focus on the characteristics of the class, typicality and adequacy of representation focus on the characteristics of the plaintiff representative of the class. Hassine v. Jeffes, 846 F.2d 169, 176 n.4 (3d Cir.1988); Newberg on Class Actions, Prerequisites for Maintaining a Class Action, §3:13, pp.316-17 (4th ed. 2002).
On the other hand, this test focuses generally but not exclusively on the adequacy of counsel for the represented class, rather than the adequacy of the plaintiff representatives. In fact, the Eleventh Circuit recently summarized the four elements required for class certification under Rule 23(a) as numerosity, commonality, typicality, and adequacy of counsel. Hines v. Widnall, 334 F.3d 1253. 1255-56 (11th Cir. 2003) (italics added).