Certifying a Class Action

The first step to a class action is class certification. The only way to bind absent class members is to certify the lawsuit as a class action. The text "Why Does Class Certification Matter" should help orient you to the reasons that parties are willing to expend so much time, energy and money on class certification motions. Class certification involves several discrete inquiries. First, to certify any class action, the plaintiffs must meet the requirements set out in Rule 23(a). These include Numerosity, Commonality, Typicality and Adequacy. We already considered the basic due process question of adequacy of representation in Hansberry v. Lee. Here we revisit it through the lens of Rule 23(a)(4) in In re Aquadots. We also look at the emerging doctrine of ascertainability and the idea of class definition in Carrera v. Bayer. Finally, we consider the requirement of commonality (and its partner, typicality) in two Supreme Court decisions, General Telephone v. Falcon and Wal-Mart v. Dukes. The second inquiry involves placing the class action into one of three categories based on the remedy sought. See FRCP 23(b). The first type of class action, under 23(b)(1), consists of cases where there is a limited fund. That type of class is illustrated in the case Ortiz v. Fibreboard Corp. A second type of class action, under 23(b)(2), seeks injunctive relief. This type is illustrated by the opinion in Floyd v. City of New York. A third type of class action, and the most controversial, is the money damages class action that can be certified under Rule 23(b)(3). This last type has the most requirements and is possibly the most litigated type of class action. The problems that arise in 23(b)(3) class actions are illustrated by four cases: Phillips Petroleum v. Shutts, Amchem Prods. v. Windsor, Comcast Corp. v. Behrend, and In re Whirlpool Front Loading Washers. Shutts, Amchem and Comcast, along with Wal-Mart, from the basic framework of class action certification law that will inform the conversation in the class going forward. Our inquiry into the class certification motion continues with a look at the emergence of the issue class action after Wal-Mart. A number of cases consider the scope and limits of issue classes and their preclusive effect. Finally, we end with a consideration of the relationship between class certification and the merits in Author's Guild v. Google and Kohen v. Pacific Investment Management Co.