Class action

Rationales and critics for class action

1. Rationales:

   1. The legal system makes some claims and defenses uneconomical to bring or defend. Allowing class action would increase the potential for deterring wrongdoers and forcing wider compliance with the law.

   2. Allowing class action can safe judicial resources on duplicate claims.

2. Critics:

   1. Availability of class actions increases the number of claims that are brought

   2. The representatives have no legal authority to make litigation decisions on behalf of the million members of the class. The lawyer will often be talking about her own fee when settling the claim on behalf of the class.

Rule 23(a) four requirements

1. Numerosity (Rule 23(a)(1)) requires the class representative to should that enough persons are in the class to make joining them as individuals impractical. Typically classes consist of at least hundreds of persons.

2. Commonality (Rule 23(a)(2)) requires that a class should consist of persons who share characteristics that matter in terms of the substantive law involved.

   1. In Title VII actions, commonality can be found if the employer used a biased testing procedure to evaluate applicants; or if there is significant proof that an employer operated under a general policy of discrimination. (Walmart)

   2. Regional and national statistics do not establish the existence of disparities at the individual corporation level. (Walmart)

3. Typicality (Rule 23(a)(3)) requires that class representatives stand, in significant respects, in the same shoes as the average class member.

4. Adequacy (Rule 23(a)(4)) is measured in several ways. Some courts require that the class representative must have some stake in the litigation. Some other courts focus more on the class lawyer. Rule 23(g) enumerates factors a court should consider: (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. Court may also consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class.

5. Challenges to adequacy of class can be made when a class is certified, when a case is settling, or in a collateral procedure in a second lawsuit (e.g. Hansberry)

Rule 23(b) three categories

1. In addition to the four requirements, the lawyer still has to show that the litigation fits within one of the three categories of Rule 23(b).

2. Rule 23(b)(1) is similar to Rule 19, and allows for class action if prosecuting separate actions by or against 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 (inconsistent outcomes establishing conflicting obligations); 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 (limited fund);

3. Rule 23(b)(2) provides for class actions where the party opposing the class has acted or refused to act on grounds that apply generally to the class. Only injunctive or declarative relief can be sought. Monetary relief cannot be sought unless it is incidental to the injunctive or declaratory relief.

4. Rule 23(b)(3) includes situations in which class action treatment is not as clearly called for as in 23(b)(1) and 23(b)(2). It usually includes mass torts actions or small-claim lawsuits.

   1. Predominance and superiority: 23(b)(3) class is allowed when the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and when a class action is superior to...

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