# Class Action Lawsuits: A Legal Overview for the 115th Congress

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR45159

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** April 11, 2018
- **Citation:** R45159

## Text

Class Action Lawsuits: A Legal Overview
for the 115th Congress
(name redacted)
Legislative Attorney
(name redacted)
Legislative Attorney
April 11, 2018

Congressional Research Service
7-....
www.crs.gov
R45159

Class Action Lawsuits: A Legal Overview for the 115th Congress

Summary
A class action is a procedure by which a large group of entities (known as a “class”) may
challenge a defendant’s allegedly unlawful conduct in a single lawsuit, rather than through
numerous, separate suits initiated by individual plaintiffs. In a class action, a plaintiff (known as
the “class representative,” the “named representative,” or the “named plaintiff”) may sue the
defendant not only on his own behalf, but also on behalf of other entities (the “class members”)
who are similarly situated to the class representative in order to resolve any legal or factual
questions that are common to the entire class.
Courts and commentators have recognized that class actions can serve several beneficial
purposes, including economizing litigation and incentivizing plaintiffs to pursue socially
desirable lawsuits. At the same time, however, class actions can occasionally subject defendants
to costly or abusive litigation. Moreover, because the class members generally do not actively
participate in a class action lawsuit, class actions pose a risk that the class representative and his
counsel will not always act in accordance with the class members’ best interests. In an attempt to
balance the benefits of class actions against the risks to defendants and class members, Federal
Rule of Civil Procedure 23 establishes a rigorous series of prerequisites that a federal class action
must satisfy. For similar reasons, Rule 23 also subjects proposed class action settlements to the
scrutiny of the federal courts.
This report serves as a primer on class action litigation in the federal courts. It begins by
discussing the purpose of class actions, as well as the risks class actions may pose to defendants,
class members, and society at large. The report also discusses the prerequisites that a class action
must satisfy before a court may “certify” it—that is, before a federal court may allow a case to
proceed as a class action. An Appendix to the report also contains a reference chart that
graphically illustrates those prerequisites for class certification. The report then discusses Rule
23’s restrictions on the parties’ ability to settle a certified class action. The report concludes by
identifying ways in which Congress could modify the legal framework governing class actions if
it were so inclined, with a particular focus on a bill currently pending in the 115th Congress that
would effectuate a variety of changes to the class action system.

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Class Action Lawsuits: A Legal Overview for the 115th Congress

Contents
Introduction ..................................................................................................................................... 1
Background on Class Actions .......................................................................................................... 1
The Purpose of the Class Action Device ................................................................................... 3
Economizing Litigation ...................................................................................................... 3
Aggregation of Individual Claims ...................................................................................... 3
Protecting Defendants from Inconsistent Adjudications ..................................................... 4
Risks of Class Actions ............................................................................................................... 5
Abusive and Costly Litigation ............................................................................................ 5
Absent Class Members ....................................................................................................... 5
Lawyer-Driven Litigation ................................................................................................... 6
How Class Actions Work................................................................................................................. 7
Federal Rule of Civil Procedure 23(a)—Mandatory Class Prerequisites .................................. 9
Numerosity (Rule 23(a)(1)) ................................................................................................ 9
Commonality (Rule 23(a)(2)) ............................................................................................ 11
Typicality (Rule 23(a)(3)) ................................................................................................. 13
Adequate Representation (Rule 23(a)(4)) ......................................................................... 14
Federal Rule of Civil Procedure 23(b)—Additional Requirements for Various Types
of Class Actions ................................................................................................................... 17
Incompatible Standards of Conduct/Limited Funds (Rule 23(b)(1)) ................................ 18
Injunctive or Declaratory Relief (Rule 23(b)(2)) .............................................................. 19
“Opt Out” Class Actions (Rule 23(b)(3)).......................................................................... 20
Ascertainability ....................................................................................................................... 26
Courts Adopting an “Administrative Feasibility” Requirement ....................................... 27
Courts Rejecting an “Administrative Feasibility” Requirement ....................................... 27
Certification............................................................................................................................. 28
Subclasses and Certification as to Particular Issues.......................................................... 29
Post-Certification........................................................................................................................... 30
Settlement ...................................................................................................................................... 30
Legislative Proposals for Changing Class Action Law ................................................................. 32
Cohesiveness of the Class ....................................................................................................... 33
Codifying the Ascertainability Doctrine ................................................................................. 36
Divergent Incentives for Class Members and Class Counsel .................................................. 37

Appendixes
Appendix. Requirements for Class Certification ........................................................................... 41

Contacts
Author Contact Information .......................................................................................................... 41

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Class Action Lawsuits: A Legal Overview for the 115th Congress

Introduction
Class action lawsuits—that is, lawsuits by representative parties on behalf of a group of similar
plaintiffs that have aggregated their claims in a single action—are frequently in the forefront of
debates over the American private law system. According to the Supreme Court, class actions are
the “most adventuresome” innovation in American law.1 To some commentators, the class action
device is the tool that “gives American workers and consumers the power and ability to level the
playing field, even when facing the most powerful corporations in the world.”2 To others, class
actions are typically brought “to essentially shakedown a defendant—hurting businesses and the
American economy.”3 Unsurprisingly then, class actions have been a frequent subject of debate in
Congress.4
This report serves as a primer5 on class action law and analyzes areas that have been the focus of
congressional discussions concerning class actions. The report first discusses the broader public
policy debate over class actions, including why class actions exist and what risks they pose to the
American system of civil justice. The report then details what a plaintiff is required to show under
the Federal Rules of Civil Procedure in order to achieve class action “certification”—that is, in
order to pursue an action on behalf of an entire class. Throughout, the report addresses the ways
in which the Supreme Court and lower federal courts have attempted to balance the benefits of
class actions against their potential drawbacks.
Lastly, this report discusses key aspects of class action litigation that have been the focus of
recent congressional legislative debates. In particular, the report focuses on three areas which
have been of particular concern: (1) the cohesiveness (or lack thereof) of the class; (2)
ascertainability and administrative feasibility of the class action; and (3) divergent incentives and
fees for class counsel compared with the benefits received by class members. The main lens for
considering these areas is the Fairness in Class Action Litigation and Furthering Asbestos Claim
Transparency Act of 2017 (H.R. 985), which passed the House of Representatives in March
2017.6 Accordingly, this report considers how H.R. 985 would modify existing law, along with
other potential avenues for change.

Background on Class Actions
The default rule in American litigation is that a lawsuit is conducted by, or on behalf of, the
named parties only.7 Class actions, however, are an exception to this rule. A class action is a
1

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).
American Association for Justice, Class Actions, https://www.justice.org/what-we-do/advocate-civil-justice-system/
issue-advocacy/class-actions (last visited Mar. 20, 2018).
3
Institution for Legal Reform, Class Actions, http://www.instituteforlegalreform.com/issues/class-actions (last visited
Mar. 20, 2018).
4
See, e.g., S. REP. NO. 109-14 (2005) (report of the Committee on the Judiciary on the Class Action Fairness Act of
2005).
5
This report is intended only to provide a broad overview of the law governing class actions. The report necessarily
omits—or provides only brief analysis of—certain subjects that are unnecessary for a basic understanding of class
action litigation. For more in-depth analysis of class actions, see generally WILLIAM RUBENSTEIN ET AL., NEWBERG ON
CLASS ACTIONS (5th ed. 2017).
6
H.R. 985, 115th Cong. (1st Sess. 2017).
7
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01
(1979)).
2

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procedure by which a large group of entities—that is, a “class”8—may challenge a defendant’s
allegedly unlawful conduct in a single lawsuit, rather than through numerous, separate suits
initiated by individual plaintiffs.9 Class actions have an ancient pedigree; analogues to class
actions “have been recognized in various forms since the earliest days of English law,”10 and class
actions have “been a fixture” of federal litigation in the United States “for over seventy-five
years.”11 Under the modern version of the class action, a plaintiff12 (known as the “class
representative,” the “named representative,” or the “named plaintiff”) may sue the defendant not
only on his own behalf, but also on behalf of other entities (the “class members”) who are
similarly situated to the class representative in order to resolve legal or factual questions that are
common to the entire class.13 To illustrate, if, for example, a large number of consumers all
purchased a product that turned out to be defective, one of those consumers could potentially
bring a single class action against the manufacturer on his own behalf as well as on behalf of all
others who purchased the product, thereby eliminating the need for other plaintiffs to join that
consumer’s lawsuit or initiate their own separate lawsuits.14
Importantly, a class action differs from other forms of litigation involving large numbers of
injured persons. In ordinary multiparty litigation, everyone seeking relief from the defendant is a
party to the lawsuit and directly participates in the litigation.15 In a class action, by contrast, the
class representative is “the only plaintiff[] actually named in the complaint”;16 the class members
are not formal parties to the lawsuit and typically do not directly guide the litigation.17 The class
representative therefore “acts on behalf of the entire class.”18 The class members, by virtue of not
8

See, e.g., Eubank v. Pella Corp., 753 F.3d 718, 719 (7th Cir. 2014).
9
E.g., Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1146-1147 (9th Cir. 2000) (“Class actions ‘promote efficiency
and economy of litigation’ by consolidating numerous individual suits into a single suit.”).
10
Ortiz v. Fibreboard Corp., 527 U.S. 815, 832 (1999).
11
Linda S. Mullenix, Ending Class Actions as We Know Them: Rethinking the American Class Action, 64 EMORY L.J.
399, 401 (2014).
12
A plaintiff may also pursue a class action against a class of defendants, as opposed to pursuing a class action on
behalf of a class of other plaintiffs. See, e.g., FED. R. CIV. P. 23(a) (“One or more members of a class may sue or be
sued as representative parties.”) (emphasis added); Bell v. Disner, No. 3:14CV91, 2015 WL 540552, at *1-6 (W.D.N.C.
Feb. 10, 2015) (certifying a class of defendants). “A defendant class action arises when a representative defendant
defends on behalf of themselves and other similarly situated parties.” William R. Shafton, California’s Uncommon
Common Law Class Action Litigation, 41 LOY. L.A. L. REV. 783, 786 n.17 (2008). However, because defendant class
actions are uncommon, see Francis X. Shen, The Overlooked Utility of the Defendant Class Action, 88 DENV. U. L.
REV. 73, 75 (2010), this report focuses exclusively on plaintiff class actions.
13
E.g., Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994) (“Class actions are representative suits brought on behalf
of groups of persons who are similarly situated.”).
14
See In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 844-45 (6th Cir. 2013) (affirming
certification of “class action lawsuit on behalf of Ohio consumers against Whirlpool Corporation alleging that design
defects in Whirlpool’s . . . washing machines . . . allow mold and mildew to grow in the machines”); Pella Corp. v.
Saltzman, 606 F.3d 391, 392 (7th Cir. 2010) (affirming certification of a class action initiated by aggrieved customers
alleging that a window manufacturer unlawfully “committed consumer fraud by not publicly declaring the role that [a]
purported design defect” in windows purchased by the class members “plays in allowing [the windows to] rot”).
15
E.g., Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc., Case No. 17-cv-00564 NC, 2017 WL 4224723, at *5 (N.D.
Cal. Sept. 22, 2017).
16
E.g., id.
17
E.g., Williams v. Gen. Elec. Capital Auto Lease, Inc., 159 F.3d 266, 269 (7 th Cir. 1998) (“Generally speaking, absent
class members are not ‘parties’ before the court in the sense of being able to direct the litigation.”). But see Elizabeth
Cabraser & Samuel Issacharoff, The Participatory Class Action, 92 N.Y.U. L. REV. 846, 849-51 (2017) (arguing that
technological and social changes had led to much more active participation by class members in recent years).
18
E.g., Williams, 159 F.3d at 269.

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being directly “present before the court,” are often referred to as being “absent” from the
litigation.19

The Purpose of the Class Action Device
The Supreme Court has recognized that the class action device serves several purposes.

Economizing Litigation
First, as the Supreme Court has explained, a “principal purpose” of class actions is to advance
“the efficiency and economy of litigation.”20 By consolidating what would normally be multiple
suits or a multiple-plaintiff litigation into a single suit sharing common questions, the class action
is “designed to avoid . . . unnecessary filing of repetitious papers and motions.”21 If every plaintiff
had to independently prove and answer the same common questions, it would typically be
“grossly inefficient, costly, and time consuming because the parties, witnesses, and courts would
be forced to endure unnecessarily duplicative litigation.”22 Class actions thereby potentially
economize litigation by consolidating every class member’s claim into a single proceeding.

Aggregation of Individual Claims
A class action also enables large numbers of persons injured by a defendant’s unlawful conduct
“to obtain relief as a group”23 when each class member’s individual claim is “too small to justify
the expense of a separate suit.”24 Oftentimes, when a defendant inflicts comparatively small
injuries to a large number of people, no plaintiff standing alone has a sufficient financial
“incentive . . . to bring a solo action prosecuting his or her rights.”25 As the Supreme Court has
noted, a class action resolves this “problem by aggregating the relatively paltry potential
recoveries into something worth someone’s (usually an attorney’s) labor.”26
To illustrate, suppose a defendant injures a million consumers for $30.00 in damages each. If each
plaintiff had to file a stand-alone suit to recover the money he lost, few would take the trouble to
do so. As former federal Judge Richard Posner once colorfully noted, “Only a lunatic or a fanatic
sues for $30”27 because the costs of prosecuting the lawsuit would far exceed the maximum
award each victim could recover.28 Thus, some legal observers have argued that absent some
other deterrent, like a successful criminal prosecution, the defendant’s $30 million wrong would
19

See, e.g., Koby v. ARS Nat’l Servs., Inc., 846 F.3d 1071, 1076 (9th Cir. 2017).
20
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 159 (1982); Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 553
(1974).
21
Am. Pipe, 414 U.S. at 550.
22
E.g., Harlow v. Sprint Nextel Corp., 254 F.R.D. 418, 423 (D. Kan. 2008).
23
Eubank v. Pella Corp., 753 F.3d 718, 719 (7th Cir. 2014).
24
Id.
25
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338,
344 (7th Cir. 1997)).
26
Id. (quoting Mace, 109 F.3d at 344).
27
E.g., Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004).
28
See, e.g., Thorogood v. Sears, Roebuck & Co., 547 F.3d 742, 744 (7 th Cir. 2008) (“If every small claim had to be
litigated separately, the vindication of small claims would be rare. The fixed costs of litigation make it impossible to
litigate a $50 claim . . . at a cost that would not exceed the value of the claim by many times.”); In re Modafinil
Antitrust Litig., 837 F.3d 238, 257 n.21 (3d Cir. 2016) (“A negative value claim is a ‘claim[] that could not be brought
on an individual basis because the transaction costs of bringing an individual action exceed the potential relief.’”).

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go unpunished, and the victims would remain uncompensated. If, however, an individual plaintiff
could bring a single class action lawsuit on behalf of everyone the defendant wronged to resolve
the common questions, then the plaintiff could potentially aggregate each class member’s $30.00
loss, resulting in a potential $30 million recovery.29 That $30 million potential award would then
make it economically rational for attorneys to expend time and resources to pursue the class’s
claims.30 Then, if the plaintiff ultimately prevailed in his class action, the resulting award could
be divided among the plaintiff, his counsel, and the other class members.31 In this way, class
actions compensate victims who might otherwise go uncompensated32 and punish wrongdoers
who might otherwise go unpunished.33 However, as explained in greater detail below,34 a court’s
decision to not allow a particular lawsuit to proceed as a class action can effectively “sound the
‘death knell’ of the litigation on the part of the plaintiffs”35 because the individual plaintiff’s claim
will often be “too small to justify the expense of” prosecuting a non-class action lawsuit.36

Protecting Defendants from Inconsistent Adjudications
Lastly, the Supreme Court has stated that the class action serves to protect defendants from
repeated and possibly inconsistent adjudications.37 By consolidating all potential plaintiffs’ claims
in a single proceeding, a defendant can obtain finality with respect to all future actions, rather
than be subject to an unknown number of repeated suits and possibly inconsistent judgments.38
Finality benefits defendants by freeing them from “the distraction of litigation” and by allowing
them to “proceed with [their] business affairs more clearly.”39

29

See, e.g., Amchem, 521 U.S. at 617.
See id.; CRS Legal Sidebar LSB10044, Suing Subway: When Does a Class Action Settlement Benefit Only the
Lawyers?, by (name redacted) [hereinafter Lewis, Subway].
31
Cf. In re US Bancorp Litig., 291 F.3d 1035, 1037 (8th Cir. 2002) (dividing class action settlement award between
class counsel, named plaintiffs, and class members).
32
E.g., Violette v. P.A. Days, Inc., 214 F.R.D. 207, 220 (S.D. Ohio 2003) (“A class action potentially allows for
recovery by individuals who otherwise would not have been compensated for [the defendant’s] alleged wrongdoings.”);
In re TFT-LCD (Flat Panel) Antitrust Litig., No. M 07-1827 SI, 2012 WL 253298, at *2 (N.D. Cal. Jan. 26, 2012)
(“Outside of a class action, it is unlikely that most of these consumers would recover for defendants’ wrongdoing.”).
33
E.g., Mullins v. Direct Dig., LLC, 795 F.3d 654, 668 (7th Cir. 2015) (explaining that “deterring and punishing
corporate wrongdoing” is an “important policy objective of class actions”); Diakos v. HSS Sys., LLC, 137 F. Supp. 3d
1300, 1307 (S.D. Fla. 2015) (“Class-action lawsuits were designed to be effective tools for deterring wrongdoing.”);
Barkouras v. Hecker, Civ. No. 06-0366 (AET), 2006 WL 3544585, at *4 (D.N.J. Dec. 8, 2006) (opining that “leaving
[defendants] unpunished” for statutory violations was “exactly the kind of result Congress intended to avoid through
the creation of the class action form”); Robert G. Bone, Justifying Class Action Limits: Parsing the Debates Over
Ascertainability and Cy Pres, 65 U. KAN. L. REV. 913, 935 (2017) (“Many view the class attorney in a small-claim
class action as a private attorney general representing the public interest in effective deterrence.”) [hereinafter Bone,
Class Action Limits].
34
See infra “How Class Actions Work.”
35
In re Modafinil Antitrust Litig., 837 F.3d 238, 249 (3d Cir. 2016). Accord, e.g., Blair v. Equifax Check Servs., Inc.,
181 F.3d 832, 834 (7th Cir. 1999).
36
E.g., Blair, 181 F.3d at 834.
37
United States Parole Comm’n v. Geraghty, 445 U.S. 388, 402-03 (1980). See also Bell v. PNC Bank, N.A., 800 F.3d
360, 379 (7th Cir. 2015) (observing that certification works in the defendants’ favor by providing a single proceeding in
which to adjudicate the claims that will bind all class members).
38
See, e.g., Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 427 (4th Cir. 2003) (“Class certification . . . promotes
consistency of results, giving defendants the benefit of finality and repose.”).
39
William B. Rubenstein, Finality in Class Action Litigation: Lessons from Habeas, 82 N.Y.U. L. REV. 790, 830
(2007).
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Risks of Class Actions
While the Supreme Court has recognized that the class action device serves several useful
purposes, the procedural mechanism also poses risks for the U.S. civil justice system.

Abusive and Costly Litigation
First, because a class action permits thousands or millions of class members to aggregate their
claims,40 a defendant who opts to defend rather than settle a class action may face “potentially
ruinous liability.”41 Consequently, “even if a class’s claim is weak, the sheer number of class
members and the potential payout that could be required if all members prove liability might
force a defendant to settle a meritless claim in order to avoid breaking the company.”42 Thus,
without effective legal safeguards, class actions could potentially encourage plaintiffs to file
lawsuits that have minimal chances of success in order to extract settlements from defendants.43
While it would of course be inaccurate to conclude that all class actions are meritless or abusive,
it is fair to say that plaintiffs have sometimes attempted to bring class action lawsuits that could
charitably be described as fanciful or humorous. To name one example, a resident of California
sued the manufacturer of Cap’n Crunch cereal for deceptive advertising, contending that the
defendant had unlawfully misled consumers to believe that “Crunchberries” were made of fruit.44
The court presiding over that case, rather than permitting the case to proceed as a class action,
dismissed the case in its entirety, opining that “the survival of the [plaintiff’s] claim would require
th[e] Court to ignore all concepts of personal responsibility and common sense.”45
Additionally, even though class actions may economize litigation in some respects,46 class action
litigation still “place[s] an enormous burden of costs and expense upon parties.”47 As one federal
district judge has maintained, almost “all class action law suits involve complex issues, which are
costly to resolve and often result in protracted proceedings.”48

Absent Class Members
Secondly, the fact that a class action permits a named plaintiff to represent absent class members
raises the concern that the named plaintiff may not always zealously represent the class’s
interests. As noted above,49 class action litigation “is ‘an exception to the usual rule that litigation
is conducted by and on behalf of the individual named parties only.’”50 “Class members who are
not parties to a class action suit” are generally “bound by the judgment in the suit,”51 even if they
40

E.g., Eubank v. Pella Corp., 753 F.3d 718, 720 (7th Cir. 2014).
E.g., In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310 (3d Cir. 2009).
42
E.g., Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012).
43
See, e.g., Robert G. Bone & David S. Evans, Class Certification and the Substantive Merits, 51 DUKE L.J. 1251,
1292 (2002) (“Because plaintiffs file frivolous and weak cases to obtain a settlement, the greater prospect of settlement
with successful certification should encourage plaintiffs to file more frivolous and weak class action suits.”).
44
Sugawara v. PepsiCo, Inc., No. 2:08-cv-01335-MCE-JFM, 2009 WL 1439115, at *1 (E.D. Cal. May 21, 2009).
45
Id. at *5.
46
E.g., Ebert v. Gen. Mills, Inc., 823 F.3d 472, 477 (8th Cir. 2016).
47
E.g., Keil v. Lopez, 862 F.3d 685, 698 (8th Cir. 2017).
48
E.g., Lachance v. Harrington, 965 F. Supp. 630, 645 (E.D. Pa. 1997).
49
See supra “Background on Class Actions.”
50
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011).
51
Crawford v. Honig, 37 F.3d 485, 487 (9th Cir. 1994). Accord, e.g., Pelt v. Utah, 539 F.3d 1271, 1284 (10th Cir. 2008)
(continued...)
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have not actively participated in the case in any way52—and, indeed, even if the parties and the
court do not (and cannot) know the specific identities of each and every class member.53 Class
actions thereby effectively “delegate” the “class members’ right to a day in court . . . to the named
plaintiff.”54 Because class members usually do not control or actively participate in the litigation,
class action litigation poses a risk that, without effective safeguards,55 the class representative
may “‘sell[] out’ the interests of absent class members in favor of his or her own”56 self-interest or
otherwise fail to fairly represent the class.57

Lawyer-Driven Litigation
Just as class members usually have no direct control over the class representative, class members
also typically “have no control over class counsel.”58 Because each class member’s interest in the
case is typically small, class members may have relatively little financial interest in the outcome
of the litigation for the class as a whole. For instance, if class counsel obtains a favorable result
for the class in the $30 million fraud example described above, each class member may win a
maximum of only $30, but class counsel could potentially receive a sizable award of attorney’s
fees.59 For this reason, courts and commentators have expressed concern that plaintiffs’ attorneys
may not always act in the best interests of class members, particularly when negotiating a
settlement with the defendant. As the U.S. Court of Appeals for the Seventh Circuit (“Seventh
Circuit”)60 explained,
Class counsel rarely have clients to whom they are responsive. The named plaintiffs in a
class action, though supposed to be the representatives of the class, are typically chosen
by class counsel; the other class members are not parties and have no control over class
counsel. The result is an acute conflict of interest between class counsel, whose pecuniary
interest is in their fees, and class members, whose pecuniary interest is in the award to the
class.61
(...continued)
(“It is well settled that a class action judgment is binding on all class members.”).
52
See, e.g., Williams v. Lane, 129 F.R.D. 636, 640 (N.D. Ill. 1990) (noting that class members, “whether or not
personally participating in the class action,” are generally “bound by judgments on class claims”) (emphasis added).
53
See infra “Ascertainability.”
54
Serv. Spring, Inc. v. Cambria Spring Co., No. 81 C 1835, 1984 WL 2926, at *2 (N.D. Ill. Jan. 6, 1984). Accord, e.g.,
In re Veneman, 309 F.3d 789, 795 (D.C. Cir. 2002) (“Class certification affects the due process rights of absent class
members to have their own day in court.”).
55
See FED. R. CIV. P. 23(a)(4) (requiring the proponent of a class action to prove, as a prerequisite to class certification,
that “the representative parties will fairly and adequately protect the interests of the class”). See also infra “Adequate
Representation (Rule 23(a)(4)).”
56
E.g., In re Triarc Cos., No. C.A. 98-31-SLR, 1998 WL 743673, at *4 n.7 (D. Del. Sept. 30, 1998).
57
See, e.g., Nesbit v. Unisys Corp., No. 2:05-CV-528-MEF, 2006 WL 2480071, at *5 (M.D. Ala. Aug. 25, 2006)
(scrutinizing “the forthrightness and vigor with which the representative party can be expected to assert and defend the
interests of the members of the class” “in order to ‘protect the legal rights of absent class members’”) (quoting London
v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1253 (11th Cir. 2003)).
58
E.g., Pearson v. NBTY, Inc., 772 F.3d 778, 787 (7th Cir. 2014).
59
“Attorney’s fees are the driving engine of class actions: without the prospect of substantial fees, lawyers would not
bring them.” Alan B. Morrison, Improving the Class Action Settlement Process: Little Things Mean a Lot, 79 GEO.
WASH. L. REV. 428, 440 (2011).
60
This report references a significant number of decisions by federal appellate courts of various regional circuits. For
purposes of brevity, references to a particular circuit in the body of this report (e.g., the Seventh Circuit) refer to the
U.S. Court of Appeals for that particular circuit.
61
Pearson, 772 F.3d at 787. See also In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prods. Liab.
(continued...)

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The structure of class actions may thereby give class counsel “an incentive to negotiate
settlements that enrich themselves but give scant reward to” the class members62—who, by virtue
of being nonparties, may lack a meaningful opportunity to safeguard their interests against
enterprising plaintiff’s attorneys.63

How Class Actions Work
Federal Rule of Civil Procedure 23 governs the initiation and maintenance of class actions in
federal64 court.65 A class action will not bind absent class members unless and until the court
presiding over the case “certifies” the proposed class action under Rule 23.66 A court may not
certify a class unless
1. the proposed class satisfies each of the four mandatory requirements established
by Rule 23(a);67
2. the proposed class action falls into at least one of the three categories of class
actions established by Rule 23(b);68 and
3. the membership of the proposed class is “ascertainable.”69
A reference chart illustrating the prerequisites for class certification is available in the Appendix
of this report.
A court’s decision to grant or deny class certification “is often the defining moment” of a class
action case.70 On the one hand, a court’s decision to deny class certification may effectively
“sound the ‘death knell’ of the litigation on the part of the plaintiffs”71 “because the representative
plaintiff’s claim is too small to justify the expense of” initiating and litigating an individual suit.72
(...continued)
Litig., 369 F.3d 293, 297 (3d Cir. 2004).
62
E.g., Thorogood v. Sears, Roebuck & Co., 627 F.3d 289, 293 (7 th Cir. 2010).
63
See, e.g., Eubank v. Pella Corp., 753 F.3d 718, 720 (7th Cir. 2014) (describing class counsel as “un-governed as a
practical matter by . . . the other members of the class”).
64
Many state courts authorize class action lawsuits. See Kenju Watanabe, Control Transaction Governance: Collective
Action and Asymmetric Information Problems and Ex Post Policing, 36 NW. J. INT’L L. & BUS. 45, 103 (2016) (“Many
states have class action systems based on Rule 23 of the Federal Rules of Civil Procedure.”). Nonetheless, this report’s
focus is on federal class action litigation.
65
See, e.g., Geoffrey C. Shaw, Class Ascertainability, 124 YALE L.J. 2354, 2390 (2015).
66
E.g., FED. R. CIV. P. 23(a)-(c); Antonio Gidi, Issue Preclusion Effect of Class Certification Orders, 63 HASTINGS L.J.
1023, 1040 (2012) (“In order to bind class members, a proposed class action must be duly certified. Before the putative
class action is certified, there is no formal class action . . .”).
67
See infra “Federal Rule of Civil Procedure 23(a)—Mandatory Class Prerequisites.”
68
See infra “Federal Rule of Civil Procedure 23(b)—Additional Requirements for Various Types of Class Actions.” If
a class action falls into the category described in Rule 23(b)(3), then there are additional requirements which must be
met prior to certification. These requirements are discussed in detail infra at ““Opt Out” Class Actions (Rule
23(b)(3)).”
69
While most courts recognize that an “ascertainability” requirement exists, courts have reached divergent conclusions
regarding what a plaintiff must prove to satisfy that requirement. See infra “Ascertainability.” See also CRS Legal
Sidebar LSB10091, How Hard Should It Be To Bring a Class Action?, by (name redacted) [hereinafter Lewis, How
Hard Should It Be].
70
E.g., In re Modafinil Antitrust Litig., 837 F.3d 238, 249 (3d Cir. 2016).
71
Id. Accord, e.g., Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 834 (7th Cir. 1999).
72
E.g., Blair, 181 F.3d at 834.

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On the other hand, a court’s decision to grant class certification “may force a defendant to settle
rather than incur the costs of defending a class action and run the risk of potentially ruinous
liability,”73 even if the class’s claims have only a minimal chance of success.74 Because the
decision to grant or deny certification is so momentous, the Supreme Court has repeatedly
instructed federal courts to conduct a “rigorous analysis” confirming that the prerequisites of Rule
23 are satisfied before certifying a class.75 The “court ‘must resolve all factual or legal disputes
relevant to class certification, even if they overlap with the merits’” of the class members’ claims
against the defendant.76 Nonetheless, the Supreme Court has cautioned that “merits questions
may” only “be considered to the extent . . . that they are relevant to determining whether the Rule
23 prerequisites for class certification are satisfied.”77
The court must conduct the class certification analysis at “an early practicable time” after the
commencement of the class action.78 “The word ‘practicable’ imports some leeway in
determining the timing of such a decision” by the court.79 Although “the issue of certification
should generally be resolved prior to addressing the merits of the plaintiff’s claims,”80 there is no
categorical rule prohibiting courts from ruling on case-dispositive motions before deciding
whether to certify the proposed class.81
“A party seeking class certification” bears the burden to “affirmatively demonstrate his
compliance with” each of the requirements described below,82 and he must satisfy that burden “by
a preponderance of the evidence.”83 It is not sufficient to merely “plead compliance with the . . .
73

E.g., In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310 (3d Cir. 2009).
E.g., Modafinil, 837 F.3d at 249 (explaining that class certification may “create unwarranted pressure to settle
nonmeritorious claims on the part of defendants”).
75
See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S.
147, 161 (1982)). Accord Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013).
76
Modafinil, 837 F.3d at 249 (quoting Hydrogen Peroxide, 552 F.3d at 307). See also Comcast, 569 U.S. at 34 (“By
refusing to entertain arguments . . . that bore on the propriety of class certification, simply because those arguments
would also be pertinent to the merits determination, the Court of Appeals ran afoul of our precedents requiring
precisely that inquiry.”).
77
Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013).
78
FED. R. CIV. P. 23(c)(1)(A).
79
Danny B. ex rel. Elliott v. Raimondo, 784 F.3d 825, 837 (1 st Cir. 2015). Accord, e.g., Collins v. Vill. of Palatine, Ill.,
875 F.3d 839 (7th Cir. 2017) (“The word ‘practicable’ allows for wiggle room.”); Elwell v. Air Line Pilots Ass’n Int’l,
Civil Action No. 13-cv-02343-REB-CBS, 2014 WL 12741158, at *1 (D. Colo. Aug. 19, 2014) (“The court . . . retains
discretion to structure the timing of the class certification decision.”).
80
Quinn v. Specialized Loan Servicing, LLC, 321 F.R.D. 324, 326 (N.D. Ill. 2017). Accord, e.g., Wallace B. Roderick
Revocable Living Tr. v. XTO Energy, Inc., No. 08-1330-JTM-KMH, 2015 WL 790081, at *1 (D. Kan. Feb. 25, 2015)
(“Most courts rule on certification before dispositive motions.”); In re Amazon.com, Inc. Fulfillment Ctr. Fair Labor
Standards Act (FLSA) & Wage & Hour Litig., Master File No. 3:14-md-2504, 2016 WL 8203223, at *1 (W.D. Ky.
Apr. 22, 2016) (“The issue of certification is typically decided prior to deciding dispositive motions.”).
81
See Richardson v. Hamilton, 2:17-cv-00134-JAW, 2017 WL 6624027, at *1 (D. Me. Dec. 28, 2017) (“It is wellsettled that, absent prejudice to the plaintiff, a court may decide a defendant’s dispositive motion in a putative class
action before taking up the issue of class certification.”); Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567, 571 n.1
(8th Cir. 2015) (“Although a district court must determine whether to certify a class at ‘an early practicable time’ in the
litigation, it is not uncommon for a district court to rule on a summary judgment motion that will clarify or simplify the
litigation prior to ruling on class certification.”) (quoting FED. R. CIV. P. 23(c)(1)(A)).
82
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
83
In re Modafinil Antitrust Litig., 837 F.3d 238, 249 (3d Cir. 2016). Accord, e.g., Steimel v. Wernert, 823 F.3d 902,
917 (7th Cir. 2016) (“The party seeking class certification bears the burden of showing, by a preponderance of the
evidence, that a proposed class meets the requirements of Federal Rule of Civil Procedure 23.”); Johnson v. Nextel
Commc’ns Inc., 780 F.3d 128, 137 (2d Cir. 2015) (“The party seeking class certification bears the burden of
(continued...)
74

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Rule 23 requirements”; the plaintiff must instead introduce “evidence that the putative class
complies with Rule 23.”84
If a court determines that the class satisfies the requirements for certification, then Rule 23 directs
the court to issue a certification order that defines the class and appoints class counsel.85 As
explained later in this report,86 a court can certify “subclasses” with separate legal representation
in a single action, and should do so where interests within the proposed class might diverge.87
Lastly, the court should then direct notice to the class members as required by Rule 23.88 The
notice required depends on the category under which the class which is certified.89
The sections that follow analyze each of the requirements for class certification in detail.90

Federal Rule of Civil Procedure 23(a)—Mandatory Class
Prerequisites
First, a court may not certify a class action unless the proposed class satisfies all four of the
mandatory requirements established by Rule 23(a).91 “Rule 23(a) ensures that the named plaintiffs
are appropriate representatives of the class whose claims they wish to litigate. The Rule’s four
requirements—numerosity, commonality, typicality, and adequate representation—effectively
limit the class claims to those fairly encompassed by the named plaintiff’s claims.”92

Numerosity (Rule 23(a)(1))
The plaintiff must first show that the proposed “class is so numerous that joinder of all
members”—that is, identifying everyone who claims to be injured by the defendant’s conduct and
(...continued)
establishing by a preponderance of the evidence that each of Rule 23’s requirements have been met.”); Brown v. Nucor
Corp., 785 F.3d 895, 931 (4th Cir. 2015) (“Before certifying a class action, courts will require a plaintiff to establish by
a preponderance of the evidence that the action complies with each part of Rule 23.”).
84
EQT Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014) (emphasis added). Accord, e.g., In re Hyundai & Kia Fuel
Econ. Litig., 881 F.3d 679, 690 (9th Cir. 2018) (explaining that the plaintiff must “demonstrate through evidentiary
proof” that the proposed class action satisfies the Rule 23 requirements); Harnish v. Widener Univ. Sch. of Law, 833
F.3d 298, 304 (3d Cir. 2016) (“A plaintiff ‘may not merely propose a method of meeting Rule 23’s requirements
without any evidentiary support.’”) (quoting Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013)).
85
FED. R. CIV. P. 23(c)(1). If there are multiple applications to serve as class counsel, the Court should select the “best
possible representation for the class.” FED. R. CIV. P. 23 Advisory Committee Notes on 2003 Amendments.
86
See infra “Subclasses and Certification as to Particular Issues.”
87
FED. R. CIV. P. 23(c)(5). See also Ortiz v. Fibreboard Corp., 527 U.S. 815, 856 (1999) (“[I]t is obvious after Amchem
that a class divided between holders of present and future claims . . . requires division into homogeneous subclasses . . .
with separate representation to eliminate conflicting interests of counsel.”).
88
FED. R. CIV. P. 23(c)(2).
89
See FED. R. CIV. P. 23(c)(2)(A)-(B).
90
See also infra Appendix.
91
FED. R. CIV. P. 23(a) (“One or more members of a class may sue or be sued as representative parties on behalf of all
members only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law
or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses
of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.”) (emphasis
added). Accord, e.g., Wright v. Mishawaka Hous. Auth., 225 F. Supp. 3d 752, 761 (N.D. Ind. 2016) (“If any of these
elements is missing, the class can’t be certified.”).
92
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147,
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having them actively participate in the lawsuit as named parties—would be “impracticable.”93
This prerequisite is known as the “numerosity” requirement.94 “The numerosity requirement
exists because the power of class actions to bind absent class members carries due process risks
and should be invoked only when necessary”—namely, when it would not be possible or
practicable for all of the class members to participate as formal parties to the suit.95
Although the text of Federal Rule of Civil Procedure 23 is “conspicuously devoid of any
numerical minimum” of class members “required for class certification,”96 “numerosity is
generally satisfied if there are more than 40 class members,”97 and generally unsatisfied if the
proposed class contains 20 members or fewer.98 Courts give “classes with between 21 and 40
members . . . varying treatment”; “these midsized classes may or may not meet the numerosity
requirement depending on the circumstances of each particular case.”99 While the number of class
members is the “starting point” of the numerosity analysis,100 “the number of members in a
proposed class is not determinative of whether joinder is impracticable.”101 Courts also consider a
variety of other factors when evaluating numerosity, the most common of which include (i)
whether the class members are geographically dispersed; (ii) the financial resources of the class
members; (iii) the burden that multiple individual actions would place on the judiciary; and (iv)
the ease with which class members may be identified.102

93

FED. R. CIV. P. 23(a)(1).
E.g., In re Modafinil Antitrust Litig., 837 F.3d 238, 248 (3d Cir. 2016).
95
William C. Jhaveri-Weeks & Austin Webbert, Class Actions Under Rule 23 and Collective Actions Under the Fair
Labor Standards Act: Preventing the Conflation of Two Distinct Tools to Enforce the Wage Laws, 23 GEO. J. ON
POVERTY L. & POL’Y 233, 258 (2016).
96
E.g., Modafinil, 837 F.3d at 249.
97
In re NFL Players Concussion Injury Litig., 821 F.3d 410, 426 (3d Cir. 2016). Accord, e.g., Mulvania v. Sheriff of
Rock Island Cty., 850 F.3d 849, 859 (7th Cir. 2017) (“A forty-member class is often regarded as sufficient to meet the
numerosity requirement.”); Penn. Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir.
2014) (“Numerosity is presumed for classes larger than forty members.”). But see Ibe v. Jones, 836 F.3d 516, 530 (5th
Cir. 2016) (holding that, depending on the circumstances, even classes with more than forty members may be
insufficiently numerous).
98
E.g., Modafinil, 837 F.3d at 250; Heredia v. Eddie Bauer LLC, Case No. 16-cv-06236-BLF, 2018 WL 369032, at *5
(N.D. Cal. Jan. 10, 2018); Hoffer v. Jones, Case No. 4:17cv214-MW/CAS, 2017 WL 5586877, at *1 (N.D. Fla. Nov.
17, 2017).
99
Modafinil, 837 F.3d at 250; Wilson v. Anthem Health Plans of Ky., Inc., No. 3:14-cv-743-TBR, 2017 WL 56064, at
*4 (W.D. Ky. Jan. 4, 2017). Accord, e.g., Lea Family P’ship Ltd. v. City of Temple Terrace, Fla., Case No: 8-16-cv3463-T-30AAS, 2017 WL 4155459, at *3 (M.D. Fla. Sept. 19, 2017) (“Numbers falling in between [21 and 40] are
open to judgment based on other factors.”).
100
Modafinil, 837 F.3d at 250.
101
Ibe, 836 F.3d at 528. Accord, e.g., NFL, 821 F.3d at 426 (“There is no magic number of class members needed for a
suit to proceed as a class action.”); Mulvania, 850 F.3d at 859 (“There is no magic number that applies to every case.”).
102
See, e.g., Modafinil, 837 F.3d at 253 (“This non-exhaustive list includes: judicial economy, the claimants’ ability
and motivation to litigate as joined plaintiffs, the financial resources of class members, the geographic dispersion of
class members, the ability to identify future claimants, and whether the claims are for injunctive relief or for
damages.”); Ibe, 836 F.3d at 528 (considering “the geographical dispersion of the class, the ease with which class
members may be identified, the nature of the action, and the size of each plaintiff’s claim”); Penn. Pub. Sch. Emps.’
Ret. Sys., 772 F.3d at 120 (considering “(i) judicial economy, (ii) geographic dispersion, (iii) the financial resources of
class members, (iv) their ability to sue separately, and (v) requests for injunctive relief that would involve future class
members”).
94

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Commonality (Rule 23(a)(2))
The plaintiff must then show that “there are questions of law or fact common to the class.”103 This
prerequisite is known as the “commonality” requirement,104 and it exists to ensure that the claims
of the full class are “limit[ed] . . . to those fairly encompassed by the named plaintiff’s claims.”105
In its 2010 decision in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court explained that the
commonality prerequisite requires more than an incidental common question within the class;
rather, the plaintiff must establish that the claims “depend upon a common contention” that is of
such a nature that “determination of its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.”106 Commentators generally agree that Wal-Mart
expanded the significance of commonality.107 There, the Court reviewed a decision certifying a
proposed class of approximately 1.5 million former and current female Wal-Mart employees. The
plaintiffs asserted a sex discrimination against Wal-Mart under Title VII of the Civil Rights Act of
1964, alleging that local Wal-Mart supervisors favored men over women when exercising their
discretion over pay and promotion.108 The plaintiffs presented statistical evidence that local
managers were disproportionately using their discretionary authority to favor men, but they did
not present any evidence of an express corporate policy against women.109 The question before
the Court was whether this proposed class met the requirement of commonality, given the
different nature of the alleged discrimination faced by each class member. As the Court observed,
the class members certainly raised “common questions”—for example, “[d]o all of us plaintiffs
indeed work for Wal-Mart?” or “[d]o all of our managers have discretion over pay?” or even “[i]s
that an unlawful employment practice?”110 Nevertheless, these sorts of questions were, in the
view of the Court, insufficient to satisfy the commonality requirement, as “any competently
crafted class complaint literally raises common ‘questions.’”111
Instead, the Court explained that, to satisfy the commonality requirement, a plaintiff must
“demonstrate that the class members ‘have suffered the same injury.’”112 “This does not mean
merely that” all of the class members have allegedly “suffered a violation of the same provision
of law.”113 Rather, the claims must depend on a common contention that is “capable of classwide
resolution”; a classwide proceeding must “generate common answers apt to drive the resolution
of the litigation.”114 The Court explained that the plaintiffs in Wal-Mart could not satisfy that
103

FED. R. CIV. P. 23(a)(2).
E.g., Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011).
105
Id. (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)).
106
Id. at 350.
107
Robert G. Bone, The Misguided Search for Class Unity, 82 GEO. WASH. L. REV. 651, 699 (2014) (“The Wal-Mart
Court made Rule 23(a)(2) into something much stricter.”) (citing cases) [hereinafter Bone, Misguided Search]. But see
Andrew J. Trask, Reactions to Wal-Mart v. Dukes: Litigation Strategy and Legal Change, 62 DEPAUL L. REV. 791, 793
(2013) (“Despite the many academics and lawyers who have written otherwise, [Wal-Mart] does not represent the
‘demise’ of the class action.”).
108
564 U.S. at 342.
109
Id. at 344.
110
Id. at 349.
111
Id.
112
Id. at 350 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)).
113
Id.
114
Id. (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 131-32
(2009)).
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requirement because, due to the nature of the underlying Title VII claim, “it w[ould] be
impossible to say that examination of all the class members’ claims for relief will produce a
common answer to the crucial question of why was I disfavored.”115 Because the plaintiffs in WalMart had presented no evidence of a general corporate policy of discrimination, there was no
reason to believe that every class member could point to the same common answer.116 Lower
courts have since affirmed that, as in Wal-Mart, a plaintiff generally cannot satisfy the
commonality requirement “where the defendant’s allegedly injurious conduct differs from
plaintiff to plaintiff.”117
Nevertheless, “commonality does not require perfect identity of questions of law or fact among
all class members,”118 and there is no requirement “that every question be common” to the
class.119 To the contrary, “even a ‘single common legal or factual issue can suffice’” to satisfy the
commonality requirement, provided that all class members have suffered from the same injurious
conduct.120 For example, in Suchanek v. Sturm Foods, Inc., the Seventh Circuit concluded that the
district court erred in finding that there was no commonality in a consumer class action involving
Keurig-style coffee pods.121 The defendant in Suchanek sold a product which outwardly
resembled the original Keurig-brand coffee pods, but which contained instant coffee rather than
fresh coffee grounds.122 Plaintiffs argued that the packaging was deceptive and sought to certify a
class on behalf of all consumers of the defendant’s product in several states to resolve the
common question of whether the packaging was in fact deceptive.123 The district court refused to
certify the class action due to variation within the class members claims.124 For example, in the
view of the district court, some class members may have purchased different versions of the
packaging in question.125 However, the Seventh Circuit vacated the district court’s order denying
class certification, explaining that these differences within the proposed class did not preclude
certification.126 The Seventh Circuit explained that all that mattered for commonality was the
existence of a question decisive to all class members that was capable of a common resolution.127
The court concluded that the question of whether the packaging in question was materially
115

Id. at 352.
Id. at 355.
117
Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014); Richey v. Matanuska-Susitna Borough, No. 3:14cv-00170 JWS, 2015 WL 1542546, at *5 (D. Alaska Apr. 7, 2015); Collinge v. IntelliQuick Delivery, Inc., No. 2:12cv-00824 JWS, 2015 WL 1292444, at *11 (D. Ariz. Mar. 23, 2015).
118
Reyes v. Netdeposit, LLC, 802 F.3d 469, 486 (3d Cir. 2015). Accord, e.g., Hughes v. Ester C Co., 317 F.R.D. 333,
344 (E.D.N.Y. 2016) (“A perfect identity of facts and law is not required.”); Otomo v. Nev. Ass’n Servs., Inc., No.
2:10-CV-2199 JCM (GWF), 2013 WL 1249598, at *2 (D. Nev. Mar. 25, 2013) (same); Ries v. Ariz. Beverages USA
LLC, 287 F.R.D. 523, 537 (N.D. Cal. 2012) (same).
119
E.g., Suchanek, 764 F.3d at 756; Ginardi v. Frontier Gas Servs., LLC, No. 4:11-cv-00420-BRW, 2012 WL 1377052,
at *2 (E.D. Ark. Apr. 19, 2012).
120
In re AVEO Pharms., Inc. Sec. Litig., Civil Action No. 13-11157, 2017 WL 5484672, at *4 (D. Mass. Nov. 14,
2017) (quoting Swack v. Credit Suisse First Bos., 230 F.R.D. 250, 259 (D. Mass. 2005)). Accord, e.g., Wal-Mart, 564
U.S. at 359 (“We quite agree that for purposes of Rule 23(a)(2) ‘even a single common question will do.’”) (quoting
Wal-Mart, 564 U.S. at 376 n.9 (Ginsburg, J., dissenting)).
121
764 F.3d at 752.
122
Id. at 752-53.
123
Id. at 755.
124
McManus v. Sturm Foods Inc., 292 F.R.D. 606, 609-20 (S.D. Ill.), vacated, Suchanek, 764 F.3d 750.
125
Id. at 618.
126
Suchanek, 764 F.3d at 752, 755-78.
127
Id. at 752, 755-78.
116

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misleading to a reasonable person satisfied the commonality requirement because the success of
each class member’s state law fraud claim depended, at least in part, on the basis of the answer to
that question.128 Nor did it matter for the appellate court that some members of the proposed class
were uninjured because, for example, they did not rely on the allegedly deceptive packaging.129
For the Seventh Circuit, “[h]ow many (if any) of the class members have a valid claim is the issue
to be determined after the class is certified.”130 In sum, although Wal-Mart reinforces that Rule
23(a)(2)’s commonality requirement is rigorous,131 cases like Suchanek indicate that the
commonality requirement is not an insurmountable barrier to class certification.132

Typicality (Rule 23(a)(3))
Third, the proposed class representative must satisfy what is known as the “typicality”
requirement133—that is, that “the claims or defenses of the representative parties are typical of the
claims or defenses of the class.”134 The primary purpose of the typicality requirement is to ensure
that “the interests of the class and the class representatives are aligned ‘so that the latter will work
to benefit the entire class through the pursuit of their own goals.’”135 A proposed class will
generally satisfy the typicality requirement if the class representative’s claim against the
defendant is based on roughly the same legal and factual basis as the claims of the absent class
members that the class representative seeks to represent.136 “Representative claims are ‘typical’ if
128

Id. at 758.
Id. at 757-58.
130
Id. at 755 (7th Cir. 2014) (quoting Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014)). See also Rikos v.
Procter & Gamble Co., 799 F.3d 497, 505 (6th Cir. 2015) (holding that plaintiffs are not required to “prove at the classcertification stage that all or most class members were in fact injured”; the plaintiff need only demonstrate “that all
members of the class have suffered the ‘same injury’”) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011)).
131
See, e.g., Paul G. Karlsgodt & Dustin M. Dow, The Practical Approach: How the Roberts Court Has Enhanced
Class Action Procedure by Strategically Carving at the Edges, 48 AKRON L. REV. 883, 885 (2015) (“Wal-Mart
unquestionably affects the level of scrutiny that lower courts now give to the question whether to certify a case as a
class action.”).
132
See, e.g., Trask, supra note 107, at 793 (“Despite the many academics and lawyers who have written otherwise,
[Wal-Mart] does not represent the ‘demise’ of the class action.”); Michael Selmi & Sylvia Tsakos, Employment
Discrimination Class Actions After Wal-Mart v. Dukes, 48 AKRON L. REV. 803, 804-05 (2015) (arguing that the
prediction of some commentators that Wal-Mart would “mark the death-knell of employment discrimination class
actions based on claims of intentional discrimination . . . has proved inaccurate”).
133
E.g., In re NFL Players Concussion Injury Litig., 821 F.3d 410, 427 (3d Cir. 2016).
134
FED. R. CIV. P. 23(a)(3).
135
NFL, 821 F.3d at 427-28 (quoting Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 182-83 (3d
Cir. 2001)). Accord, e.g., Mazzei v. Money Store, 829 F.3d 260, 272 (2d Cir. 2016) (“One purpose of the typicality
requirement is to ensure that the named plaintiff’s claim and the class claims are so interrelated that the interests of the
class members will be fairly and adequately protected in their absence.”); Torres v. Mercer Canyons Inc., 835 F.3d
1125, 1141 (9th Cir. 2016) (“The test of typicality serves to ensure that ‘the interest of the named representative aligns
with the interests of the class.’”).
136
E.g., In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 599 (3d Cir. 2009) (“The claims of the class
representative must be generally the same as those of the class in terms of both (a) the legal theory advanced and (b) the
factual circumstances underlying that theory.”); Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (holding
that “a claim is typical if” the class representative’s “claims are based on the same legal theory” as those of the absent
class members); Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993) (“Rule 23(a)(3)’s typicality requirement is
satisfied when each class member’s claim arises from the same course of events and each class member makes similar
legal arguments to prove the defendant’s liability.”). But see Elizabeth M. v. Montenez, 458 F.3d 779, 787 (8th Cir.
2006) (“The presence of a common legal theory does not establish typicality when proof of a violation requires
individualized inquiry.”).
129

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they are reasonably coextensive with those of absent class members; they need not be
substantially identical.”137 Thus, “even relatively pronounced factual differences” between the
named plaintiff’s claims and those of the class members “will generally not preclude a finding of
typicality where there is a strong similarity of legal theories.”138
Many courts, when evaluating whether a proposed class action satisfies the typicality
requirement, also inquire whether the proposed class representative’s claim “arises from the same
event or practice or course of conduct that gives rise to the claims of other class members.”139 In
this respect, the typicality requirement “tend[s] to merge” with the commonality requirement,140
which likewise examines whether “the same conduct or practice by the same defendant gives rise
to the same kind of claims from all class members.”141 Other courts have suggested that typicality
overlaps with the “adequate representation” requirement discussed below,142 which similarly
seeks to ensure that representative parties “adequately protect the interests of the class.”143

Adequate Representation (Rule 23(a)(4))
Fourth, a plaintiff must demonstrate that “the representative parties will fairly and adequately
protect the interests of the class.”144 This prerequisite is alternatively known as the “adequacy of
representation” requirement,145 the “adequate representation” requirement,146 or just the
“adequacy” requirement.147 The “adequate representation inquiry consists of two parts”:
1. “The adequacy of the named plaintiffs as representatives of the proposed class’s
myriad members, with their differing and separate interests”; and
2. “The adequacy of the proposed class counsel.”148
137

Torres, 835 F.3d at 1134. Accord, e.g., NFL, 821 F.3d at 428 (“Class members need not ‘share identical claims.’”)
(quoting Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. 1994)).
138
NFL, 821 F.3d at 428. Accord, e.g., Local 703, I.B. of T. Grocery & Food Emps. Welfare Fund v. Regions Fin.
Corp., 762 F.3d 1248, 1259 (11th Cir. 2014) (“The typicality requirement may be satisfied despite substantial factual
differences . . . when there is a strong similarity of legal theories.”); DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188,
1198-99 (10th Cir. 2010) (“Provided the claims of [the n]amed [p]laintiffs and class members are based on the same
legal or remedial theory, differing fact situations of the class members do not defeat typicality.”).
139
Oshana, 472 F.3d at 514. Accord, e.g., Just Film, Inc. v. Buono, 847 F.3d 1108, 1118 (9th Cir. 2017) (“It is sufficient
for typicality if the plaintiff endured a course of conduct directed against the class.”); Newton, 259 F.3d at 183 (“If the
claims of the named plaintiffs and putative class members involve the same conduct by the defendant, typicality is
established.”); Robidoux, 987 F.2d at 936-37 (“When it is alleged that the same unlawful conduct was directed at or
affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met.”).
140
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 n.5 (2011).
141
Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014). Accord, e.g., Johnson v. Nextel Commc’ns Inc.,
780 F.3d 128, 137 (2d Cir. 2015) (same); Reyes v. Netdeposit, LLC, 802 F.3d 469, 486 (3d Cir. 2015) (“A court’s
focus must be ‘on whether the defendant’s conduct is common as to all of the class members.’”) (quoting Sullivan v.
DB Invs., Inc., 667 F.3d 273, 298 (3d Cir. 2011)).
142
See infra “Adequate Representation (Rule 23(a)(4)).”
143
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982). See also Hassine v. Jeffes, 846 F.2d 169, 176 n.4 (3d
Cir. 1988) (noting that both typicality and adequacy of representation evaluate sufficiency of named plaintiff).
144
FED. R. CIV. P. 23(a)(4).
145
E.g., In re NFL Players Concussion Injury Litig., 821 F.3d 410, 428 (3d Cir. 2016).
146
E.g., Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011).
147
E.g., In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 942 (9th Cir. 2015).
148
Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592 (7th Cir. 2011). Accord, e.g., Jones v. Singing River Health
Servs. Found., 865 F.3d 285, 294 (5th Cir. 2017) (“Rule 23(a)(4) involves examination of both the representatives’
counsel and the representatives themselves.”); In re Cmty. Bank of N. Va. Mortg. Lending Practices Litig., 795 F.3d
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Adequacy of the Class Representative
“The adequacy inquiry” serves primarily “to uncover conflicts of interest between named parties
and the class they seek to represent.”149 “To assure vigorous prosecution” of the proposed class
action, courts consider
1. “Whether the class representative has adequate incentive to pursue the class’s
claim”; and
2. “Whether some difference between the class representative and some class
members might undermine that incentive.”150
“Conflicts of interest between the named plaintiffs and the class they seek to represent” can
potentially defeat class certification on adequacy grounds.151 Importantly, however, a conflict
between the class representative and the absent class members will defeat class certification only
if the conflict is “fundamental to the suit” and goes “to the heart of the litigation.”152
The Supreme Court’s opinion in Amchem Products v. Windsor illustrates this concept.153 In that
case, the plaintiffs sought to certify a settlement-only class consisting of all persons who had
either been exposed or who had a family member who was exposed to the defendant’s asbestos—
a class of unknown size that may well have contained tens of thousands of persons.154 The action
sought to settle all present and future asbestos-related claims that might be brought against the
defendant, once and for all, on behalf of this untold number of class members, some of whom
were already sick and others of whom were presently uninjured and might never be injured in the
future.155
The Supreme Court concluded that this proposed class action could not proceed for a number of
reasons, one of which was that the class could not satisfy the adequacy requirement.156 The
proposed class contained both the currently injured and those who might manifest an injury only
in the future, leading to a “serious intra-class conflict.”157 In particular, the uninjured plaintiffs
had an interest in an “ample, inflation-protected fund for the future,” while currently injured

(...continued)
380, 392 (3d Cir. 2015) (“The adequacy requirement primarily examines two matters: the interests and incentives of the
class representatives, and the experience and performance of class counsel.”).
149
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997).
150
In re Payment Card Interchange Fee & Merch. Discount Antitrust Litig., 827 F.3d 223, 231 (2d Cir. 2016). Accord,
e.g., Larson v. AT&T Mobility LLC, 687 F.3d 109, 132 (3d Cir. 2012) (“The adequacy inquiry . . . has two purposes:
to determine (1) that the putative named plaintiff has the ability and the incentive to represent the claims of the class
vigorously, and (2) that there is no conflict between the individual’s claims and those asserted on behalf of the class.”).
151
Berger v. Compaq Comput. Corp., 257 F.3d 475, 480 (5th Cir. 2001). See also, e.g., Riffey v. Rauner, 873 F.3d 558,
563-64 (7th Cir. 2017) (explaining that “a class is not fairly and adequately represented” for the purposes of Rule 23(a)
“if class members have antagonistic or conflicting claims”); Rodriguez v. West Publ’g Corp., 563 F.3d 948, 959 (9 th
Cir. 2009) (“An absence of material conflicts of interest between the named plaintiffs and . . . other class members is
central to adequacy.”).
152
Online DVD-Rental, 779 F.3d at 942. Accord, e.g., Carriuolo v. Gen. Motors Co., 823 F.3d 977, 989 (11th Cir.
2016); In re Payment Card Interchange Fee & Merch. Discount Antitrust Litig., 827 F.3d 223, 231 (2d Cir. 2016).
153
521 U.S. 591.
154
Id. at 602-03.
155
Id. at 597.
156
Id. at 625.
157
Id. at 610.

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plaintiffs had the diametrically opposed interest of “generous immediate payments.”158 Because
of these conflicts of interest, the Court concluded that structural assurances of fairness, like
separate subclasses with separate representation,159 were needed to ensure adequate
representation.160 After Amchem, the lower courts have avoided similar conflicts of interest by
certifying separate subclasses, each with their own counsel and class representative.161
Not all conflicts, however, require such treatment. Some conflicts are not fundamental, and
therefore do not threaten class certification on adequacy grounds. For instance, most courts have
agreed that a named plaintiff’s eligibility for “incentive awards that are intended to compensate
class representatives for work undertaken on behalf of a class . . . do not, by themselves, create an
impermissible conflict between class members and their representatives,” even if those incentive
awards will result in the named plaintiff receiving more money than the absent class members.162
Because such awards do not dull the named plaintiff’s motivation to “prosecute the action
vigorously on behalf of the class,” a named plaintiff who stands to receive an incentive award at
the conclusion of the litigation will generally be able to adequately represent the class.163
In addition to assessing whether a fundamental conflict renders the named plaintiff unable to
adequately represent the absent class members, a few courts also consider whether the proposed
class representative “possess[es] a sufficient level of knowledge and understanding to be capable
of ‘controlling’ or ‘prosecuting’ the litigation.”164 Many other courts, however, “disfavor . . .
‘attacks on the adequacy of a class representative based on the representative’s ignorance’” about
the litigation, especially in complex cases.165

Adequacy of Class Counsel
The adequacy inquiry also requires the court to evaluate the “competency and conflicts of class
counsel.”166 The court must ensure that the attorney who seeks to represent the class is “qualified,
experienced, and generally able to conduct the litigation.”167
Rule 23 “lists several non-exclusive factors that a district court must consider in determining
‘counsel’s ability to fairly and adequately represent the interests of the class,’”168 including
158

Id. at 626-27.
Subclasses are provided for by FED. R. CIV. P. 23(c)(5). See infra “Subclasses and Certification as to Particular
Issues.”
160
521 U.S. at 626-27.
161
See, e.g., In re NFL Players Concussion Injury Litig., 821 F.3d 410, 431-32 (3d Cir. 2016).
162
In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 943 (9th Cir. 2015). Accord, e.g., Berry v. Schulman, 807
F.3d 600, 613-14 (4th Cir. 2015).
163
Online DVD-Rental, 779 F.3d at 943. Accord, e.g., Berry, 807 F.3d at 613-14.
164
See, e.g., Ibe v. Jones, 836 F.3d 516, 529 (5th Cir. 2016).
165
In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 42 (2d Cir. 2009) (quoting Baffa v. Donaldson, Lufkin
& Jenrette Sec. Corp., 222 F.3d 52, 61 (2d Cir. 2000)). Accord, e.g., Gunnells v. Healthplan Servs., Inc., 348 F.3d 417,
430 (4th Cir. 2003) (“In a complex lawsuit . . . the representative need not have extensive knowledge of the facts of the
case in order to be an adequate representative.”); New Directions Treatment Servs. v. City of Reading, 490 F.3d 293,
313 (3d Cir. 2007) (“A class representative need only possess ‘a minimal degree of knowledge necessary to meet the
adequacy standard.’”) (quoting Szczubelek v. Cendant Mortg. Corp., 215 F.R.D. 107, 119 (D.N.J. 2003)).
166
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997).
167
Beattie v. CenturyTel, Inc., 511 F.3d 554, 562 (6th Cir. 2007); Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir.
1997). Accord, e.g., Jones v. Singing River Health Servs. Found., 865 F.3d 285, 294 (5 th Cir. 2017) (“The adequacy
requirement mandates an inquiry into the zeal and competence of the representative’s counsel.”).
168
E.g., In re Cmty. Bank of N. Va., 622 F.3d 275, 292 (3d Cir. 2010) (quoting FED. R. CIV. P. 23(g)(1)(B)).
159

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1. the work counsel has done in identifying or investigating potential claims in the
action;
2. counsel’s experience in handling class actions, other complex litigation, and the
types of claims asserted in the action;
3. counsel’s knowledge of the applicable law; and
4. the resources that counsel will commit to representing the class.169
Under this section, courts have also scrutinized any conflicts that a class representative may have
with class counsel. As the Seventh Circuit explained in Eubank v. Pella Corporation, “[c]lass
representatives are . . . fiduciaries of the class members, and fiduciaries are not allowed to have
conflicts of interest without the informed consent of their beneficiaries.”170 In that case, the court
reversed an order certifying a class because the class counsel was the son-in-law of the class
representative, leading to a “grave conflict of interest” because the class representative had less
reason to attempt to constrain the fee to counsel.171 Other courts have found that representation is
inadequate where the named plaintiff was a friend and former business partner with class
counsel,172 or where the named plaintiff was an employee of class counsel.173
However, not every preexisting relationship between class counsel and the named plaintiff is fatal
to class certification. In Levitt v. Southwest Airlines Co., for example, the Seventh Circuit upheld
a class where one of the two class representatives was co-counsel with lead class counsel in a
separate case.174 Although the Levitt court reduced the attorney’s fee award by $15,000 because
the attorney had failed to disclose the conflict, the court nonetheless affirmed the class
certification order in part because counsel had successfully obtained a favorable settlement for the
class.175

Federal Rule of Civil Procedure 23(b)—Additional Requirements
for Various Types of Class Actions
“In addition to the[] four general requirements” for classes established by Rule 23(a), “there are
additional requirements that must be met depending on the type of class [action] the [plaintiff]
seeks to certify.”176 “There are three types of class actions that can be maintained, and Rule
23(b)(1)-(3) specifies the additional requirements that apply to each of them.”177 If the proposed
class action does not satisfy the requirements of any of those three categories, the court must deny
169

FED. R. CIV. P. 23(g)(1)(A). See also Cmty. Bank of N. Va., 622 F.3d at 292 (specifying that the Rule 23(g)(1)(A)
factors govern the determination of whether counsel is adequate for the purposes of Rule 23(a)(4)’s adequacy
requirement); In re NII Holdings, Inc. Sec. Litig., 311 F.R.D. 401, 407-08 (E.D. Va. 2015) (same); Int’l Union, United
Auto., Aerospace, & Agric. Implement Workers of Am. v. Gen. Motors Corp., No. 07-CV-14074-DT, 2008 WL
2968408, at *19-20 (E.D. Mich. July 31, 2008) (same).
170
753 F.3d 718, 723-24 (7th Cir. 2014).
171
Id. at 724.
172
London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1255 (11th Cir. 2003); Susman v. Lincoln American Corp., 561
F.2d 86, 90, 95 (7th Cir. 1977).
173
Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1375 (11th Cir. 1984).
174
799 F.3d 701, 713 (7th Cir. 2015).
175
Id. at 715-16.
176
Huffman v. Prudential Ins. Co. of Am., No. 2:10-cv-05135, 2016 WL 5724293, at *3 (E.D. Pa. Sept. 30, 2016).
Accord, e.g., FED. R. CIV. P. 23(b).
177
Huffman, 2016 WL 5724293, at *3. Accord, e.g., FED. R. CIV. P. 23(b)(1)-(3).

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class certification.178 As is true of the Rule 23(a) requirements, the court must perform “a rigorous
analysis” to determine whether the Rule 23(b) requirements are satisfied.179

Incompatible Standards of Conduct/Limited Funds (Rule 23(b)(1))
Rule 23(b)(1) provides that a class action may be maintained if prosecuting separate actions by
individual class members would create a risk of
(A) inconsistent or varying adjudications with respect to individual class members that
would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter,
would be dispositive of the interests of the other members not parties to the individual
adjudications or would substantially impair or impede their ability to protect their
interests.180

Class members have no right to opt out of a Rule 23(b)(1) class,181 as “allowing class members to
opt out of the class and pursue individual claims would deplete the fund to the detriment of other
class members.”182

Inconsistent or Varying Adjudications (Rule 23(b)(1)(A))
“The phrase ‘incompatible standards of conduct’ refers to the situation where ‘different results in
separate actions would impair the opposing party’s ability to pursue a uniform continuing course
of conduct.’”183 So, for example, if separate lawsuits proceeding in different courts could result in
one court ordering the defendant to reimburse a plaintiff from a retirement plan while another
court prohibits the plaintiff from recovering anything from that plan, then “the risk of inconsistent
orders . . . satisfies Rule 23(b)(1)(A).”184

Limited Fund Class Actions (Rule 23(b)(1)(B))
“Class actions certified under Rule 23(b)(1)(B) . . . typically involve limited pools of money that
may not be adequate to cover the claims of all plaintiffs,”185 as may occur when there are
178

See FED. R. CIV. P. 23(b).
Comcast Corp. v. Behrend, 569 U.S. 27, 33-34 (2013) (“Certification is proper only if the trial court is satisfied,
after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied . . . The same analytical principles
govern Rule 23(b).”) (internal citations omitted).
180
FED. R. CIV. P. 23(b)(1).
181
E.g., Penn. Chiropractic Ass’n v. Blue Cross Blue Shield Ass’n, No. 09 C 5619, 2011 WL 6819081, at *15 (N.D. Ill.
Dec. 28, 2011) (“Rule 23(b)(1)(A) does not permit opt-outs.”); Stott v. Capital Fin. Servs., Inc., 277 F.R.D. 316, 326
(N.D. Tex. 2011) (explaining that a member of a Rule 23(b)(1)(B) cannot opt out “because allowing class members to
opt out of the class and pursue individual claims would deplete the fund to the detriment of other class members”). See
generally infra “Notice and Opt-Out.”
182
Stott, 277 F.R.D. at 326. Accord, e.g., Fed. Ins. Co. v. Caldera Med. Inc., Case No. 2:15-cv-00393-SVW-PJW, 2016
WL 5922313, at *3 (C.D. Cal. July 25, 2016) (“If a class member could opt out of a limited fund class action, pursue
her claim, and collect her purse, the entire point of the aggregate proceeding would be undermined.”).
183
Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1193 (9th Cir. 2001).
184
See Stanford v. Foamex L.P., 263 F.R.D. 156, 173 (E.D. Pa. 2009) (“For example, if Stanford were successful in his
plan-wide claim, but ‘Participant A’ were unsuccessful when raising the same claims in an individual account action,
one court order would require defendants to reimburse Participant A while another court order would foreclose such
recovery. Such competing orders lead to incompatible standards of conduct for the defendants . . . The risk of
inconsistent orders arising from parallel plan-wide and individual account claims satisfies Rule 23(b)(1)(A).”).
185
Cashman v. Dolce Int’l/Hartford, Inc., 225 F.R.D. 73, 93 (D. Conn. 2004). Accord, e.g., In re Katrina Canal
(continued...)
179

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“multiple claims to a single, tangible fund, such as a bank account, trust, insurance policy, or
proceeds from a sale of an asset.”186 In such cases involving “limited funds,” “every award made
to one claimant” would reduce “the amount of funds available to other claimants until, in the
absence of equitable management of the fund, some claimants are able to obtain full satisfaction
of their claims, while others are left with no recovery at all.”187 Rule 23(b)(1)(B) therefore
ensures “equitable distribution of those limited funds, so that the first plaintiffs bringing claims
do not deprive later suing plaintiffs the opportunity to press their own claims.”188 Rule
23(b)(1)(B) classes are therefore “designed to protect plaintiffs from one another.”189

Injunctive or Declaratory Relief (Rule 23(b)(2))
A plaintiff may obtain class certification pursuant to Rule 23(b)(2) by demonstrating that “the
party opposing the class has acted or refused to act on grounds that apply generally to the class,
so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class
as a whole.”190 “Colloquially, 23(b)(2) is the appropriate rule to enlist when the plaintiffs’ primary
goal is not monetary relief, but rather to require the defendant to do or not do something that
would benefit the whole class.”191
In order to obtain class certification under Rule 23(b)(2), the plaintiff must demonstrate that “a
single injunction or declaratory judgment would provide relief to each member of the class.”192
Rule 23(b)(2) does “not authorize class certification when each individual class member would be
entitled to a different injunction or declaratory judgment against the defendant.”193 In other words,
the relief sought by the proposed class must be “indivisible, benefitting all members of the (b)(2)
[c]lass at once.”194
(...continued)
Breaches Litig., 628 F.3d 185, 191 (5th Cir. 2010) (“A ‘limited fund’ action, which aggregates numerous claims against
a fund insufficient to satisfy them all, is one type of class action traditionally encompassed by Rule 23(b)(1)(B).”);
Santomenno v. Transamerica Life Ins. Co., 310 F.R.D. 451, 463 (C.D. Cal. 2015) (describing limited fund cases as the
“paradigmatic” Rule 23(b)(1)(B) case).
186
Stott, 277 F.R.D. at 326. See also, e.g., Fed. Ins. Co., 2016 WL 5922313, at *3 (“Classic illustrations of limited fund
class actions include claims to trust assets, a bank account, insurance proceeds, company assets in a liquidation sale,
proceeds of a ship sale in a maritime accident suit, and others.”).
187
In re Black Farmers Discrimination Litig., 856 F. Supp. 2d 1, 16 (D.D.C. 2011). See also, e.g., McLaurin v. Prestage
Foods, Inc., 271 F.R.D. 465, 478 (E.D.N.C. 2010) (“Rule 23(b)(1)(B) is invoked in ‘limited fund’ circumstances,
whereby individual lawsuits may exhaust the limited amount of assets available and leave some claimants without a
remedy.”).
188
E.g., Cashman, 225 F.R.D. at 93-94.
189
Id. at 93. See also, e.g., Harris v. Koenig, 271 F.R.D. 383, 392 (D.D.C. 2010) (“Rule 23(b)(1)(B) seeks to prevent
prejudice to other class members who did not participate in the litigation.”).
190
FED. R. CIV. P. 23(b)(2). “Injunctive relief” refers to a court order either commanding an entity to take some
specified action or forbidding an entity from taking some specified action. See BLACK’S LAW DICTIONARY (10th ed.
2014). “Declaratory relief” refers to a court order that formally “determine[s] the legal status or ownership of a thing.”
Id.
191
Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of City of Chi., 797 F.3d 426, 441 (7 th Cir. 2015).
192
Jennings v. Rodriguez, 138 S. Ct. 830, 852 (2018) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360
(2011)).
193
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011).
194
Berry v. Schulman, 807 F.3d 600, 609 (4th Cir. 2015). See also Wal-Mart, 564 U.S. at 360 (“The key to the (b)(2)
class is ‘the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such
that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’”) (quoting
Nagareda, supra note 114, at 132).

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Nor does Rule 23(b)(2) “authorize class certification when each class member would be entitled
to an individualized award of monetary damages.”195 Courts generally agree that “a 23(b)(2) class
cannot seek money damages unless the monetary relief” sought is merely “incidental to the
injunctive or declaratory relief” requested by the class.196
Rule 23(b)(2), like Rule 23(b)(1), generally “provides no opportunity for (b)(2) class members to
opt out.”197 Courts have concluded that “these procedural safeguards are not required because a
(b)(2) class is presumed to be homogenous in nature, with few conflicting interests among its
members.”198 As a result, “all class members” of a certified Rule 23(b)(2) class will generally “be
bound by a single judgment” at the conclusion of the litigation.199

“Opt Out” Class Actions (Rule 23(b)(3))
“The most common” type of class action is an action certified pursuant to Federal Rule of Civil
Procedure 23(b)(3),200 which authorizes “class actions for damages designed to secure judgments
binding all class members save those who affirmatively elected to be excluded” from the class.201
“Rule 23(b)(3) applies to most classes seeking monetary relief.”202 Unlike the two types of class
action described above, Rule 23(b)(3) grants class members an opportunity to opt out of the class,
as explained in greater detail below.203
“To qualify for certification under Rule 23(b)(3), a proposed class must meet two prerequisites
beyond the Rule 23(a) prerequisites.”204 The plaintiff must demonstrate that:
1. “The questions of law or fact common to class members predominate over any
questions affecting only individual members”; and
2. “A class action is superior to other methods for fairly and efficiently adjudicating
the controversy.”205
195

Wal-Mart, 564 U.S. at 360.
Chi. Teachers Union, Local No. 1, 797 F.3d at 443. Accord, e.g., Berry, 807 F.3d at 609 (“Where monetary relief is
‘incidental’ to injunctive or declaratory relief, Rule 23(b)(2) certification may be permissible.”); Amara v. CIGNA
Corp., 775 F.3d 510, 520 (2d Cir. 2014) (concluding that Rule 23(b)(2) “does not foreclose an award of monetary relief
when that relief is incidental to a final injunctive or declaratory remedy”).
197
Ebert v. Gen. Mills, Inc., 823 F.3d 472, 480 (8th Cir. 2016). Accord, e.g., FED. R. CIV. P. 23(c)(2)(A). See generally
infra “Notice and Opt-Out.”
198
Casa Orlando Apartments, Ltd. v. Fed. Nat’l Mortg. Ass’n, 624 F.3d 185, 199 (5 th Cir. 2010). Accord, e.g., Coleman
v. Gen. Motors Acceptance Corp., 296 F.3d 443, 447 (6th Cir. 2002) (explaining that opt-out rights “are considered
unnecessary for a Rule 23(b)(2) class because its requirements are designed to permit only classes with homogenous
interests”); Berry, 807 F.3d at 612 (“The premise behind certification of mandatory classes under Rule 23(b)(2) is that,
because the relief sought is uniform, so are the interests of class members, making class-wide representation possible
and opt-out rights unnecessary.”).
199
Gates v. Rohm & Haas Co., 655 F.3d 255, 264 (3d Cir. 2011). Accord, e.g., In re St. Jude Med., Inc., 425 F.3d 1116,
1121 (8th Cir. 2005) (“‘Unnamed members are bound by the action without the opportunity to opt out’ of a Rule
23(b)(2) class.”) (quoting Barnes v. Am. Tobacco Co., 161 F.3d 127, 142-43 (3d Cir. 1998)).
200
Baker v. Masco Builder Cabinet Grp., Inc., No. CIV. 09-5085-JLV, 2011 WL 1256907, at *2 (D.S.D. Mar. 30,
2011); Christine P. Bartholomew, The Failed Superiority Experiment, 69 VAND. L. REV. 1295, 1299 (2016).
201
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614-15 (1997). Accord, e.g., FED. R. CIV. P. 23(b)(3).
202
Donovan v. St. Joseph Cty. Sheriff, Cause No. 3:11-CV-133-TLS, 2012 WL 1601314, at *7 (N.D. Ind. May 3,
2012). Accord, e.g., Ronald W. Breaux et al., A Guide to Data Protection and Breach Response—Part 2, 26 No. 8
INTELL. PROP. & TECH. L.J. 23, 26 (2014) (stating that “most classes seeking monetary relief rely” on Rule 23(b)(3)).
203
See infra “Notice and Opt-Out.”
204
Amchem, 521 U.S. at 615.
196

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These prerequisites are known as “predominance” and “superiority,” respectively.206

Predominance
“The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive
to warrant adjudication by representation.”207 The predominance requirement’s “purpose is to
‘ensure that the class will be certified only when it would achieve economies of time, effort, and
expense, and promote uniformity of decision as to persons similarly situated, without sacrificing
procedural fairness or bringing about other undesirable results.’”208 The predominance question is
complex, and courts have not set forth a clear methodology for determining whether a proposed
class action satisfies the predominance requirement.209 Most courts agree that “[t]he main concern
of the predominance inquiry under Rule 23(b)(3) is the balance between” the “individual and
common” questions raised by the proposed class action.210 “An individual question is one where
‘members of a proposed class will need to present evidence that varies from member to
member.’”211 A common question, by contrast, “is one where ‘the same evidence will suffice for
each member to make a prima facie showing [or] the issue is susceptible to generalized, classwide proof.’”212 A plaintiff may satisfy the predominance requirement if the “issues that are
‘susceptible to generalized, class-wide proof’ are ‘more prevalent or important’” to the case than
the issues that require individualized proof.213
The Supreme Court has provided general guidelines on predominance. The most significant
Supreme Court case on predominance is Amchem, discussed above.214 There, the Court rejected a
class containing all persons who had either been exposed or who had a family member who was
exposed to the defendant’s asbestos.215 In considering whether to certify this class, the Court,
explaining that the purpose of predominance is to test “whether proposed classes are sufficiently
cohesive to warrant adjudication by representation,” held that there were too many questions of

(...continued)
205
FED. R. CIV. P. 23(b)(3).
206
E.g., Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 81 (2d Cir. 2015).
207
Amchem, 521 U.S. at 623.
208
Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) (quoting Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards &
Sons, Inc. 502 F.3d 91, 104 (2d Cir. 2007)).
209
5-23 MOORE’S FEDERAL PRACTICE – CIVIL § 23.45 (2018) (“There is no precise test for determining whether
common questions of law or fact predominate, however. Instead, the Rule requires a pragmatic assessment of the entire
action and all the issues involved.”) (citing cases).
210
In re Hyundai & Kia Fuel Econ. Litig., 881 F.3d 679, 691, at *3 (9 th Cir. 2018). Accord, e.g., Myers, 624 F.3d at
549.
211
Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (quoting RUBENSTEIN, supra note 5 § 4:50).
212
Id. (quoting RUBENSTEIN, supra note 5 § 4:49).
213
Harnish v. Widener Univ. Sch. of Law, 833 F.3d 298, 304 (3d Cir. 2016) (quoting Tyson Foods, 136 S. Ct. at 1045).
Accord, e.g., In re Petrobras Sec., 862 F.3d 250, 270 (2d Cir. 2017) (“Th[e] predominance requirement is satisfied if:
(1) resolution of any material legal or factual questions can be achieved through generalized proof, and (2) these
common issues are more substantial than the issues subject only to individualized proof.”); Bridging Cmtys. Inc. v. Top
Flite Fin. Inc., 843 F.3d 1119, 1124 (6th Cir. 2016) (“To satisfy the predominance requirement in Rule 23(b)(3), a
plaintiff must establish that the issues in the class action that are subject to generalized proof, and thus applicable to the
class as a whole, predominate over those issues that are subject only to individualized proof.”).
214
See supra “Adequacy of the Class Representative.”
215
521 U.S. 591, 602-03 (1997).

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too great a significance which were peculiar to the categories of class members and to individual
class members for predominance to be met.216 Specifically, the Court noted the following:
Class members were exposed to different asbestos-containing products, for different
amounts of time, in different ways, and over different periods. Some class members
suffer no physical injury . . . each has a different history of cigarette smoking . . . .
Differences in state law . . . compound these disparities.217

Amchem thus stands for the proposition that divergent questions on the facts or on the law within
the class can defeat predominance. So, for example, many lower courts have held that a proposed
class action may violate the predominance requirement if each class member’s claim is governed
by a materially different set of substantive laws, which can occur when class members who live
in different states sue the defendant under different state laws.218 Where “variations in state law
raise the potential for the application of multiple and diverse legal standards and a related need
for multiple jury instructions” or “multiply the individualized factual determinations that the court
would be required to undertake in individualized hearings,”219 those variations may “overwhelm
the ability of the trier of fact meaningfully to advance the litigation through classwide proof” and
thereby defeat predominance.220
However, the lower courts have not concluded that any difference of circumstance or damages
within the class automatically means a failure to meet the predominance requirement. For
example, the Seventh Circuit suggested that predominance could be satisfied in Suchanek v.
Sturm Foods, Inc.,221 also discussed above.222 In that case, involving consumers in eight different
states who had purchased instant-coffee coffee pods, the class of consumers would have
encountered the allegedly deceptive advertising necessarily in a particularized context based on
the individual’s circumstances, leading to individualized questions on reliance and causation.
Nonetheless, the court concluded that the question of whether the advertising was materially
misleading could still be resolved on a class basis.223 The court explained that, because it “would

216

Id. at 623.
Id. at 624 (internal quotation marks and citations omitted). See also In re Hyundai & Kia Fuel Econ. Litig., 881 F.3d
679, 691 (9th Cir. 2018) (“In a multi-state class action, variations in state law may swamp any common issues and
defeat predominance.”) (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 741 (5 th Cir. 1996)); Mazza v. Am. Honda
Motor Co., 666 F.3d 581, 596 (9th Cir. 2012) (“Because the law of multiple jurisdictions applies here . . . variances in
state law overwhelm common issues and preclude predominance for a single nationwide class.”). But see, e.g., Sullivan
v. DB Invs., Inc., 667 F.3d 273, 297 (3d Cir. 2011) (noting that variations in state law do not always defeat
predominance).
218
See, e.g., Casa Orlando Apartments, Ltd. v. Fed. Nat’l Mortg. Ass’n, 624 F.3d 185, 194 (5 th Cir. 2010) (“In a multistate class action, variations in state law may swamp any common issues and defeat predominance.”); Hyundai, 881
F.3d at 691 (same). But see, e.g., Sullivan, 667 F.3d at 297 (noting that variations in state law do not always defeat
predominance).
219
Cole v. Gen. Motors Corp., 484 F.3d 717, 726 (5th Cir. 2007). See also, e.g., Pilgrim v. Universal Health Card, LLC,
660 F.3d 943, 948 (6th Cir. 2011) (“If more than a few of the laws of the fifty states differ . . . the district judge would
face an impossible task of instructing a jury on the relevant law.”).
220
Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 137 (2d Cir. 2015). Accord, e.g., Mazza, 666 F.3d at 596
(“Because the law of multiple jurisdictions applies here . . . variances in state law overwhelm common issues and
preclude predominance for a single nationwide class.”).
221
764 F.3d 750 (7th Cir. 2014).
222
See supra “Commonality (Rule 23(a)(2)).”
223
764 F.3d at 760.
217

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be a straightforward matter” to resolve the individualized issues of reliance and causation in
“individualized follow-on proceedings,” class certification was likely appropriate.224
Similarly, courts have generally confirmed that individualized damages inquiries generally do not
preclude class certification.225 Because “individual issues of damages” are often “easy to resolve
because the calculations are formulaic” and “district courts have many tools to decide individual
damages” in an efficient manner, individualized damages calculations will rarely eclipse the
issues common to all class members.226 Thus, in most jurisdictions, the plaintiff “need not show
that each member’s damages . . . are identical” in order to obtain class certification.227
Lastly, a few federal appellate courts have held that “[e]ven if the common questions do not
predominate over the individual questions so that class certification of the entire action is
warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues
under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues.”228 However,
the Fifth Circuit, in its oft-cited opinion in Castano v. American Tobacco Co., disagreed, stating
that Rule 23(c)(4) may not be used to sever particular issues in order to avoid the application of
predominance to the entire claim; according to the Fifth Circuit, Rule 23(c)(4) is simply a
“housekeeping rule” which permits courts to certify particular issues when the class as a whole
meets the other requirements of the Rule.229 The Third Circuit has adopted yet another approach,
applying a multifactor test to determine whether it is appropriate to certify an issue class.230

224

Id. The Seventh Circuit remanded to allow the district court to “apply[] the legal standards and principles”
announced in Suchanek “in the first instance.” Id. at 761.
225
Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (“When one or more of the central issues in the
action are common to the class and can be said to predominate, the action may be considered proper under Rule
23(b)(3) even though other important matters will have to be tried separately, such as damages or some affirmative
defenses peculiar to some individual class members.”) (internal quotations and citations omitted). See also Carriuolo v.
Gen. Motors Co., 823 F.3d 977, 988 (11th Cir. 2016) (“Individualized damages calculations are insufficient to foreclose
the possibility of class certification, especially when, as here, the central liability question is so clearly common to each
class member.”); Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1155 (9 th Cir. 2016) (“The need for
individualized findings as to the amount of damages does not defeat class certification.”); Neale v. Volvo Cars of N.
Am., LLC, 794 F.3d 353, 374-75 (3d Cir. 2015) (“Individual damages calculations do not preclude class certification
under Rule 23(b)(3).”).
226
Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1239 (11 th Cir. 2016). See also, e.g., In re Deepwater
Horizon, 739 F.3d 790, 816-17 (5th Cir. 2014); Bustillos v. Bd. of Cty. Comm’rs of Hidalgo Cty., 310 F.R.D. 631, 658
(D.N.M. 2015) (noting that, where “an objective—usually formulaic—damages determination can be made without
individual subjective inquiry,” the need for “individual damage calculations” will “rarely defeat a predominance
finding”). But see Brown, 817 F.3d at 1239-40 (“The black-letter rule that individual damages do not always defeat
predominance . . . has always been subject to exceptions. For example, individual damages defeat predominance if
computing them ‘will be so complex, fact-specific, and difficult that the burden on the court system would be simply
intolerable.’”) (quoting Klay v. Humana, Inc., 382 F.3d 1241, 1259, 1260 (11 th Cir. 2004), abrogated in part on other
grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008)).
227
Just Film, Inc. v. Buono, 847 F.3d 1108, 1120 (9th Cir. 2017). Accord, e.g., Butler v. Sears, Roebuck & Co., 727
F.3d 796, 801 (7th Cir. 2013) (“It would drive a stake through the heart of the class action device . . . to require that
every member of the class have identical damages.”).
228
In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 225 (2d Cir. 2006) (quoting Valentino v. Carter-Wallace, Inc.,
97 F.3d 1227, 1234 (9th Cir. 1996)). See also McLaughlin v. Am. Tobacco Co, 522 F.3d 215, 234 (7th Cir. 2008). See
generally infra “Subclasses and Certification as to Particular Issues.”
229
84 F.3d 734, 745 (5th Cir. 1996).
230
Gates v. Rohm & Haas Co., 655 F.3d 255, 273 (3d Cir. 2011) (declining to join these cases or the Fifth Circuit on
this issue and electing to apply a multifactor test based on the Final Draft of the Principles of Applied Litigation to
determine whether issue classing is appropriate).

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Superiority
In addition to satisfying the predominance requirement, a plaintiff seeking certification of an optout class pursuant to Rule 23(b)(3) must also show that “a class action is superior to other
methods for fairly and efficiently adjudicating the controversy.”231 “The focus of this analysis is
on ‘the relative advantages of a class action suit over whatever other forms of litigation might be
realistically available to the plaintiffs.’”232 To determine whether a class action would be superior
to the available alternatives, the Rule sets out four factors for courts to consider:
(A) the class members’ interests in individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already
begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims
in the particular forum; and
(D) the likely difficulties in managing a class action.233
These four factors are “nonexhaustive.”234
The last of those four factors—“the likely difficulties in managing a class action,”235 also known
as “manageability”—“is, by far, the most critical concern in determining whether a class action is
a superior means of adjudication.”236 To determine whether a proposed class action would be
more manageable than alternative methods for adjudicating the dispute, the court must consider
“the whole range of practical problems that may render the class action format inappropriate for a
particular suit,”237 such as “potential difficulties in notifying class members of the suit,
calculation of individual damages, and distribution of damages.”238
The superiority inquiry asks not whether the proposed class action “will create significant
management problems,” but rather “whether it will create relatively more management problems
than any of the alternatives” potentially available to the class members.239 If the mere existence of
231

FED. R. CIV. P. 23(b)(3).
Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1183-84 (11th Cir. 2010)
(quoting Klay v. Humana, Inc., 382 F.3d 1241, 1259, 1269 (11 th Cir. 2004), abrogated in part on other grounds by
Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008)). Accord, e.g., In re Cmty. Bank of N. Va. Mortg. Lending
Practices Litig., 795 F.3d 380, 409 (3d Cir. 2015) (“The superiority requirement asks a district court to balance, in
terms of fairness and efficiency, the merits of a class action against those of alternative available methods of
adjudication.”).
233
FED. R. CIV. P. 23(b)(3). Accord, e.g., In re NFL Players Concussion Injury Litig., 821 F.3d 410, 434-35 (3d Cir.
2016) (specifying that courts should consider the FED. R. CIV. P. 23(b)(3) factors when performing the superiority
inquiry).
234
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997).
235
FED. R. CIV. P. 23(b)(3)(D).
236
Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 82 (2d Cir. 2015). Accord, e.g., Skinner v. Best Buy Co., 2:06cv-03749-FMC-Ex, 2008 WL 11339648, at *3 (C.D. Cal. Mar. 18, 2008) (“Courts consider manageability the most
important.”); Pitt v. City of Portsmouth, Va., 221 F.R.D. 438, 446 (E.D. Va. 2004) (“Manageability is perhaps the most
important consideration in a Rule 23(b)(3) determination.”).
237
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164 (1974).
238
E.g., Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1304 (9th Cir. 1990); Mills v. Foremost Ins.
Co., 269 F.R.D. 663, 680 (M.D. Fla. 2010); Djikstra v. Carenbauer, Civil Action No. 5:11-CV-152, 2013 WL
12136594, at *7 (N.D. W. Va. Jan. 3, 2013).
239
Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1358 (11th Cir. 2009) (emphasis added); George v. Nat’l Water
(continued...)
232

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manageability problems was enough to defeat class certification, then no class action would ever
be certified, as virtually “all class actions pose[] manageability concerns” by virtue of their scope
and complexity.240
“The superiority of a class action also depends on the existence of a realistic alternative to class
litigation.”241 For instance, the court could compare the advantages and disadvantages of allowing
the case to proceed as a class action to those of other adjudicatory procedures, such as “multiple
individual actions, coordinated individual actions, consolidated individual actions, [or] test
cases.”242 However, a proposed class action generally satisfies the superiority requirement if the
plaintiff’s claims would likely not be adjudicated at all absent a class action.243
Proposed class actions are particularly likely to satisfy the superiority requirement “where
recovery on an individual basis would be dwarfed by the cost of litigating on an individual
basis.”244 Where, by contrast, “individual damages run high,” such that individual class members
“have a substantial stake in the dispute and” consequently “do not lack the means of obtaining
representation,” then separate suits by individual plaintiffs may be a realistic and superior
alternative to class action litigation.245

Notice and Opt-Out
“Class members are bound by [any] judgment” ultimately entered in a certified class action,
“whether favorable or unfavorable.”246 Thus, to protect the rights of absent class members, Rule
23(b)(3) affords class members an opportunity to withdraw from—that is, “opt out”247—of a
certified Rule 23(b)(3) class.248 A person who opts out of a certified Rule 23(b)(3) class will not
(...continued)
Main Cleaning Co., 286 F.R.D. 168, 183 (D. Mass. 2012). Accord, e.g., Schwartz v. Avis Rent a Car Sys., LLC, Civil
Action No. 11-4052 (JLL), 2014 WL 4272018, at *14 (D.N.J. Aug. 28, 2014) (“The Court must query not whether
there will be any manageability problems, but whether reasonably foreseeable difficulties render some other method of
adjudication superior to class certification.”).
240
See Crane v. Int’l Paper Co., No. Civ.A. 3:02-3352-22, 2005 WL 3627139, at *11 (D.S.C. Apr. 19, 2005). See also,
e.g., Dibb v. Allianceone Receivables Mgmt., Inc., Case No. 14-5835 RJB, 2015 WL 8970778, at *13 (W.D. Wash.
Dec. 16, 2015) (“While all class actions are by nature more complex than other litigation, this case will not be overly
difficult to manage.”).
241
Rowden v. Pac. Parking Sys., Inc., 282 F.R.D. 581, 585 (C.D. Cal. 2012). Accord, e.g., Morris v. Davita Healthcare
Partners, Inc., 308 F.R.D. 360, 375 (D. Colo. 2015) (“A class action is the superior method for managing litigation if no
realistic alternative exists.”).
242
See George v. Nat’l Water Main Cleaning Co., 286 F.R.D. 168, 183 (D. Mass. 2012).
243
E.g., Gunnells v. Healthplan Servs., 348 F.3d 417, 426 (4th Cir. 2003) (“[T]he adjudication of [the] matter through a
class action [is] superior to no adjudication of the matter at all.”).
244
Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010). Accord, e.g., Young v. Nationwide
Mut. Ins. Co., 693 F.3d 532, 545 (6th Cir. 2012) (noting that a proposed class action is particularly likely to satisfy the
superiority requirement “where it is not economically feasible to obtain relief within the traditional framework of a
multiplicity of small individual suits for damages”).
245
Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1184 (11 th Cir. 2010).
Accord, e.g., Woods v. Vector Mktg. Corp., No. C-14-0264 EMC, 2015 WL 5188682, at *13 (N.D. Cal. Sept. 4, 2015)
(explaining that the “superiority factor . . . weighs against certification where individual damages ‘run high’ such that
individual class members have a strong interest ‘in making individual decisions on whether and when to settle’”).
246
E.g., Calderone v. Scott, 838 F.3d 1101, 1104 (11th Cir. 2016).
247
See, e.g., Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 448 (6 th Cir. 2002).
248
FED. R. CIV. P. 23(c)(2)(B)(v) (providing “that the court will exclude from the class any member who requests
exclusion”). See also FED. R. CIV. P. 23(c)(2)(B) (requiring notice to members of Rule 23(b)(3) classes).
As explained above, class actions under other subsections of Rule 23(b) generally do not afford class members similar
(continued...)

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be bound by any judgment or settlement ultimately entered in the case.249 He may then, if he
wishes, commence his own individual lawsuit challenging the defendant’s alleged misconduct.250

Ascertainability
Most courts have concluded that, in addition to the aforementioned prerequisites enumerated in
Federal Rule of Civil Procedure 23(a)-(b), a plaintiff seeking to certify a class action must also
show that the membership of the proposed class is “ascertainable.”251 Although not articulated in
Rule 23 explicitly, courts have concluded that Rule 23 implicitly requires the named plaintiff to
prove that members of the proposed class are “ascertainable.”252 To satisfy this “ascertainability”
requirement, “the members of the proposed class” must be “readily identifiable.”253 “The purpose
of the ascertainability requirement is to avoid ‘satellite litigation’ over who is a member of the
class and to ‘properly enforce the preclusive effect of [a] final judgment’ by clarifying ‘who gets
the benefit of any relief and who gets the burden of any loss.’”254
Significantly, however, courts have disagreed regarding what a plaintiff must prove in order to
satisfy the ascertainability requirement.255 As explained below, some courts have required the
named plaintiff to demonstrate an “administratively feasible mechanism” for determining whether
putative class members fall within the class definition, while other courts have explicitly refused
to adopt any such requirement.

(...continued)
opt-out rights. See supra “Incompatible Standards of Conduct/Limited Funds (Rule 23(b)(1))”; “Injunctive or
Declaratory Relief (Rule 23(b)(2)).”
249
E.g., Calderone, 838 F.3d at 1104; McElmurry v. U.S. Bank Nat’l Ass’n, 495 F.3d 1136, 1139 (9 th Cir. 2007)
(“Once the district court certifies a class . . . all class members are bound by the judgment unless they opt out of the
suit.”).
250
See, e.g., Randall v. Rolls-Royce Corp., 637 F.3d 818, 820 (7th Cir. 2011) (explaining that opting out allows the
class member “to litigate [his] claims in a new suit”); In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.,
722 F.3d 838, 861 (6th Cir. 2013) (“Any class member who wishes to control his or her own litigation may opt out of
the class under Rule 23(c)(2)(B)(v).”).
251
See, e.g., In re Petrobras Sec., 862 F.3d 250, 260 (2d Cir. 2017) (“‘Most circuit courts of appeals have recognized
that Rule 23 contains an implicit threshold requirement that the members of a proposed class be readily identifiable,’
often characterized as ‘an “ascertainability” requirement.’”) (quoting Sandusky Wellness Ctr., LLC v. Medtox Sci.,
Inc., 821 F.3d 992, 995 (8th Cir. 2016)); Carriuolo v. Gen. Motors Co., 823 F.3d 977, 984 (11 th Cir. 2016) (“A plaintiff
seeking to represent a proposed class must establish that the proposed class is . . . clearly ascertainable.”); In re Nexium
Antitrust Litig., 777 F.3d 9, 19 (1st Cir. 2015) (“The definition of the class must be ‘definite,’ that is, the standards must
allow the class members to be ascertainable.”) (quoting RUBENSTEIN, supra note 5 §§ 3:1, 3:3). See also EQT Prod. Co.
v. Adair, 764 F.3d 347, 358 (4th Cir. 2014) (“We have repeatedly recognized that Rule 23 contains an implicit threshold
requirement that the members of a proposed class be ‘readily identifiable.’ Our sister circuits have described this rule as
an ‘ascertainability’ requirement. However phrased, the requirement is the same.”). See generally Lewis, How Hard
Should It Be, supra note 69.
252
Petrobras, 862 F.3d at 260 (noting that the ascertainability requirement is “implicit,” rather than explicitly
enumerated in Rule 23); Mullins v. Direct Dig., LLC, 795 F.3d 654, 657 (7th Cir. 2015) (same). See also Sandusky, 821
F.3d at 995 (“Most of the other circuit courts of appeals have ‘recognized that Rule 23 contains an implicit threshold
requirement that the members of a proposed class be “readily identifiable” . . . an “ascertainability” requirement.’”).
253
E.g., Petrobras, 862 F.3d at 264.
254
Bernstein v. Virgin Am., Inc., Case No. 15-cv-02277-JST, 2016 WL 6576621, at *11 (N.D. Cal. Nov. 7, 2016)
(quoting Xavier v. Philip Morris USA Inc., 787 F. Supp. 2d 1075, 1089 (N.D. Cal. 2011)).
255
See generally Lewis, How Hard Should It Be, supra note 69.

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Courts Adopting an “Administrative Feasibility” Requirement
For example, to certify a class action in the Third and Eleventh Circuits, the plaintiff must show
that
1. “the class is defined with reference to objective criteria”; and
2. “there is a reliable and administratively feasible mechanism for determining
whether putative class members fall within the class definition.”256
To be “defined with reference to objective criteria,”257 membership in a class cannot be based on
subjective considerations “such as class members’ state of mind.”258 The “administratively
feasible” requirement, by contrast, mandates that there be “a ‘manageable process’” to identify
class members “that does not require much, if any, individual inquiry.”259 “If individualized factfinding or mini-trials will be required to prove class membership,” then the proposed class action
cannot “satisfy the ascertainability requirement.”260 As a result, when a plaintiff alleges, for
instance, that a defendant manufacturer falsely and deceptively advertised a product to the class
members, but the plaintiff produces no evidence that it would ultimately be possible to identify
which purchasers bought that product, that plaintiff cannot satisfy the administrative feasibility
requirement.261 If, by contrast, “‘objective records’ . . . can ‘readily identify’” who purchased the
product in question, then the plaintiff can satisfy the administrative feasibility requirement.262

Courts Rejecting an “Administrative Feasibility” Requirement
Other courts, including the Second, Sixth, Seventh, Eighth, and Ninth Circuits, have concluded
that the plaintiff is not required to “prove at the certification stage that there is a ‘reliable and
administratively feasible’ way to identify all who fall within the class definition.”263 Instead,
256

City Select Auto Sales Inc. v. BMW Bank of N. Am. Inc., 867 F.3d 434, 439 (3d Cir. 2017). Accord, e.g., Karhu v.
Vital Pharm., Inc., 621 F. App’x 945, 946 (11th Cir. 2015) (“A class is not ascertainable unless the class definition
contains objective criteria that allow for class members to be identified in an administratively feasible way.”).
257
See City Select, 867 F.3d at 439.
258
Id. at 439 n.3. See also, e.g., In re Plastics Additives Antitrust Litig., Civil Action No. 03-2038, 2006 WL 6172035,
at *14 (E.D. Pa. Aug. 31, 2006) (“The use of subjective variables to define the parameters of a proposed class defeats
the requisite precision for class certification.”); Lipstein v. UnitedHealth Grp., 296 F.R.D. 279, 291 (D.N.J. 2013)
(concluding that proposed “class suffer[ed] from an ascertainability problem” because class membership was based not
“on objective criteria, as . . . recent precedents demand, but on subjective” considerations).
259
Carrera v. Bayer Corp., 727 F.3d 300, 307-08 (3d Cir. 2013) (quoting RUBENSTEIN, supra note 5 § 3:3). Accord
Karhu, 621 F. App’x at 946.
260
Carrera, 727 F.3d at 307. Accord Karhu, 621 F. App’x at 949.
261
See Carrera, 727 F.3d at 308-09 (“The evidence put forth by Carrera is insufficient to show that retailer records in
this case can be used to identify class members . . . There is no evidence that a single purchaser of [the product] could
be identified using records of customer membership cards or records of online sales.”).
262
See Byrd v. Aaron’s Inc., 784 F.3d 154, 159, 162 (3d Cir. 2015) (finding that plaintiff satisfied ascertainability
requirement where the defendant’s “own records” revealed “the full identity who leased or purchased” computers
containing software that the defendant allegedly used to spy on customers) (quoting Grandalski v. Quest Diagnostics
Inc., 767 F.3d 175, 184 n.5 (3d Cir. 2014)).
263
Mullins v. Direct Dig., LLC, 795 F.3d 654, 657 (7th Cir. 2015). Accord In re Petrobras Sec., 862 F.3d 250, 264 (2d
Cir. 2017) (“We conclude that a freestanding administrative feasibility requirement is neither compelled by precedent
nor consistent with Rule 23, joining four of our sister circuits in declining to adopt such a requirement.”); Briseno v.
Conagra Foods,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR45159. Public record. Not legal advice.