Is My Case Suitable for Class Certification? Part 1

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Is My Case Suitable for Class Certification? Part 1

Rule 23 of the Federal Rules of Civil Procedure governs the procedure and prerequisites required for class certification in the Federal Courts. The Rule states four prerequisites applicable to all class actions. They are most commonly referred to as (1) “numerosity” (“a class so [large] that joinder of all members is impracticable”); (2) “commonality” (“questions of law or fact common to the class”); (3) “typicality” (named parties’ claims or defenses “are typical … of the class”); and (4) “adequacy of representation” (representatives “will fairly and adequately protect the interests of the class”). This article addresses the “numerosity” prong.


The usual rule is that litigation must only be conducted by and on behalf of the parties named in a lawsuit. The class-action device is an exception to the rule. In a class action, a class representative may conduct litigation on behalf of a group of persons who are “similarly situated.” That is to say, a class representative may conduct litigation on behalf of him or herself as well as unnamed others who have suffered the same or similar harm as a result of the same or similar conduct. The class action device promotes judicial economy by freeing courts of the onerous rule of compulsory joinder and spares courts the burden of having to decide numerous, sufficiently similar actions, one after another. However, to ensure that the exception does not become the rule, a class action is allowed only when the class is so numerous as to make it impractical to bring all similarly situated persons before the court. This prerequisite – that joinder of all class members be impracticable – ensures that wannabe class representatives and their counsel do not unnecessarily deprive individuals of their right to adjudicate their own claims.

Typically, the size of the class dictates whether joinder is impracticable. Indeed, when a putative class reaches substantial proportions, the impracticability requirement is generally satisfied by the numbers alone. For this reason, the impracticability prerequisite is often referred to as the “numerosity” prong and, while not a hard and fast minimum, it is generally true that if the putative class exceeds 40 individual members, the numerosity prong will be met.

A putative class’ size, however, is not entirely determinative of the practicability question. Classes with fewer than twenty people have been allowed to proceed. Conversely, a putative class consisting of over 4,000 potential members was denied on the basis that joinder was not impracticable. These extreme examples are helpful reminders that in determining the impracticability of joinder, a court may consider not only the size of the putative class, but also the class’ geographic dispersion and whether the identities of the putative class members are easily ascertainable. If the identities of potential class members are known and geographically concentrated, joinder may be considered a practical method by which to litigate the numerous claims. Thus, while the numerosity prong is typically satisfied where the potential number of class members exceeds 40, the analysis nevertheless consists of more than merely counting heads.

In addition, a party seeking to utilize the class action device must be prepared to prove that there are in fact sufficiently numerous putative class members. In other words, a party seeking class certification may not rely on evidence that is over-inclusive or simply postulate that the class exceeds an amount for which joinder would be impracticable. Rather, a party desiring to utilize the class action device must present evidence that is truly indicative of the size of the class.

Finally, when attempting to certify a nationwide class with state-specific subclasses, or when attempting to certify a class action with unique subclasses, the party seeking certification must prove that each subclass satisfies the numerosity prong.


If you feel you may have a claim suitable for class certification, The Klamann Law Firm can help. Please call us today to learn more.

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