Four prerequisites, then one of three types, and the rigorous analysis in between.
Esshaki Legal Media TeamCurrent as of September 2022
Class certification is the pivotal ruling in aggregate litigation and requires a
rigorous analysis that frequently overlaps with the merits.
Prerequisites. Numerosity, such that joinder is impracticable; commonality,
meaning questions capable of classwide resolution that will generate common
answers; typicality of the representative’s claims; and adequacy of the
representative and counsel.
Implicit requirements. An ascertainable or administratively feasible class
definition in some circuits, and standing of the named plaintiff.
Type one. Separate actions would risk inconsistent adjudications binding the
defendant, or would impair absent members’ interests — the limited fund and
inconsistent obligations categories. No opt-out.
Type two. Injunctive or declaratory relief appropriate for the class as a
whole. Not available where monetary relief is more than incidental.
Type three. Common questions predominate over individual ones, and a class
action is superior to other methods. Predominance is where most commercial class
actions are decided, and the availability of a common method of proving damages
consistent with the liability theory is central.
Damages models must measure only the damages attributable to the theory of
liability certified.
Interlocutory review of certification orders is available by petition within
a short period, and is one of the few immediate appeals in civil practice.