Certification in the Federal System

In determining whether to certify the class, courts look to several factors. Federal Rule 23 sets out seven factors the court must consider in determining whether to grant the certification. The court first must determine if there is a class to certify and, if so, the objective factors that will help define the class. Second, the named representative must be a current member of the defined class. In prison litigation, for example, a former prisoner may not initiate class litigation on behalf of those still confined. Third, there must be so many members of the class that joinder is impracticable. Usually in federal cases if there are at least 40 individual members the courts will consider the class large enough to make joinder impractical. The question is not simply one of numbers, however. The court also considers whether the geographic location of the various claimants makes joinder unrealistic. The size of the individual claims is a factor, also. If individual claims are large, fewer members will be needed to justify certification. Federal courts have certified classes with as few as 18 members when joinder was impractical based on all factors. Conversely, courts have refused to certify classes with as many as 840, holding that the number of individuals was not too many to be joined as parties in a traditional lawsuit.

The fourth prerequisite is that the claimants have issues in common. The commonality requirement is met when all class members share at least one issue of law or fact. The fifth requirement is that the claims of the named representative are typical of those of the members of the class. This ensures that the named representative will vigorously fight for those issues.

The sixth requirement is that the named representative can fairly and adequately protect the interests of the class. This factor often is subject to litigation, because the judgment will be binding on all members of the class, including those who never appear in court. In deciding this issue, the court examines a number of factors. First, the court must determine whether the named representative actually has a stake in the litigation. If he or she is motivated by some unrelated reason, such as revenge, greed, or to use the class action to gain a competitive business advantage, the certification should fail. The court also will examine the relationship between the named representative and the lawyer proposing the certification. The named representative and the lawyer should not have a family or financial relationship that might interfere with the attorney's independent judgment about the handling of the case. The court also will examine the competence of the attorney for the named representative. Because class actions are complex, technical, and extensive, the court must be assured that the representative's attorney has the experience and resources to handle the case. Finally, the court will look to the class itself to determine whether there are conflicts over the issues. The existence of conflict will not automatically defeat certification, but it may mean that special certification is required, as discussed below.

The seventh prerequisite for certification in the federal system is that the case fit one of three categories that justify the use of the class action device. This determination establishes that the class action is the most appropriate way to proceed. First, the court determines whether denial of the class action would cause prejudice to class or non-class members. For example, if individuals filed lawsuits after class certification was denied, and the defendant ran out of money after the first few claims were settled, individual members might not be compensated. A defendant also could be prejudiced by the denial of certification, in that a defendant would be required to respond to individual claimants. If the court finds there would be prejudice by denying certification, then the seventh prerequisite for certification is met. The prerequisite also may be met if the suit is for injunctive or declaratory relief. These cases often involve employment discrimination, consumer protection, or environmental issues. Typically, the plaintiff is seeking to halt some practice of the defendant and class action may be the most effective way to do this. If the case is of this type, the seventh prerequisite is met. Finally, the prerequisite will be met in cases in which the sole link between the plaintiff class members is the claim that they suffered similar injuries caused by the same defendant or class of defendants. This analysis requires that the interests the plaintiffs have in common predominate any they do not share, and that the class action is the superior method for handling the claims. If these factors are met, the seventh prerequisite is fulfilled and the court may certify the class.