Class Action Certification

Scoring Guidance:

2. Commonality (Rule 23(a)(2))

Legal Standard: There must be "questions of law or fact common to the class."

Post-Wal-Mart v. Dukes Standard: The common question must be capable of generating a common answer that will "resolve an issue that is central to the validity of each one of the claims in one stroke."

Assessment Checklist:

• Common legal questions identified: List specific legal issues shared by all class members
• Common factual questions identified: List specific factual issues shared by all
• Central to claims: Do the common questions go to the heart of the case?
• Common answer possible: Can common questions be answered with common evidence?
• Defendant's conduct focus: Does the case focus on defendant's uniform conduct?

Red Flags for Commonality:

• Claims require individualized proof of reliance
• Significant variation in defendant's conduct toward different class members
• Different state laws apply with materially different standards

3. Typicality (Rule 23(a)(3))

Legal Standard: The claims of the representative parties must be "typical of the claims of the class."

Assessment Checklist:

• Same legal theory: Do representatives' claims arise from the same legal theory?
• Same course of conduct: Do representatives' claims arise from same defendant conduct?
• Same injury type: Did representatives suffer the same type of injury?
• No unique defenses: Are representatives free from defenses that don't apply to the class?
• Aligned interests: Are representatives' interests aligned with the class?

4. Adequacy of Representation (Rule 23(a)(4))

Legal Standard: The representative parties must "fairly and adequately protect the interests of the class."

Part A: Adequacy of Class Representatives

• No conflicts of interest: Representatives' interests don't conflict with class
• Sufficient interest: Representatives have sufficient stake in the outcome
• Understanding of role: Representatives understand their fiduciary duties
• Willingness to participate: Representatives will actively participate
• Credibility: Representatives can withstand cross-examination

Part B: Adequacy of Class Counsel

• Relevant experience: Counsel has class action experience
• Resources: Counsel has resources to litigate
• Knowledge of law: Counsel knows applicable law
• No conflicts: Counsel has no conflicts of interest

Rule 23(b) Categories - AT LEAST ONE REQUIRED

Rule 23(b)(1) - Risk of Inconsistent Adjudications

23(b)(1)(A): Individual actions would create risk of inconsistent standards for defendant. 23(b)(1)(B): Individual adjudications would impair other class members' interests (limited fund).

When to Use: Limited fund cases, shared resources, common property. Note: NO opt-out right.

Rule 23(b)(2) - Injunctive or Declaratory Relief

Legal Standard: Defendant "has acted or refused to act on grounds that apply generally to the class."

Assessment Checklist:

• Uniform conduct: Defendant's conduct applies generally to the class
• Injunctive relief primary: Primary relief sought is injunctive or declaratory
• Monetary relief incidental: Any monetary relief is truly incidental

When to Use: Civil rights cases, employment discrimination seeking policy changes. Note: Typically NO opt-out right.

Rule 23(b)(3) - Predominance and Superiority

Legal Standard: Common questions "predominate" AND class action is "superior" to other methods.

Predominance Assessment:

• Common questions listed: Document all common questions
• Individual questions listed: Document all individual questions
• Balance analysis: Do common questions predominate?
• Choice of law: Does one state's law apply, or do variations defeat predominance?

Superiority Assessment (Rule 23(b)(3) factors):

• Individual interest: Do class members want to control their own cases?
• Existing litigation: What litigation already exists?
• Forum desirability: Is concentrating here desirable?
• Manageability: Can the class action be managed?

Note: MANDATORY notice and OPT-OUT rights.

Certification Assessment Output Format

## CLASS ACTION CERTIFICATION ASSESSMENT

**Case**: [Case name]
**Date**: [Date]

### EXECUTIVE SUMMARY
[2-3 sentence summary]

**Overall Assessment**: [LIKELY CERTIFIABLE / UNCERTAIN / UNLIKELY TO CERTIFY]

---

### RULE 23(a) PREREQUISITES

#### Numerosity: [MET / LIKELY MET / UNCERTAIN / NOT MET]
- Estimated class size: [number]
- Key evidence: [sources]

#### Commonality: [MET / LIKELY MET / UNCERTAIN / NOT MET]
- Common questions:
  1. [Question 1]
  2. [Question 2]

#### Typicality: [MET / LIKELY MET / UNCERTAIN / NOT MET]
- Representative alignment: [analysis]

#### Adequacy: [MET / LIKELY MET / UNCERTAIN / NOT MET]
- Representative adequacy: [assessment]
- Counsel adequacy: [assessment]

---

### RULE 23(b) CATEGORY

**Recommended Category**: [23(b)(1) / 23(b)(2) / 23(b)(3)]

If 23(b)(3):
- **Predominance**: [MET / UNCERTAIN / NOT MET]
- **Superiority**: [MET / UNCERTAIN / NOT MET]

---

### KEY RISKS TO CERTIFICATION
1. [Risk with mitigation]
2. [Risk with mitigation]

### CLASS DEFINITION RECOMMENDATION
[Proposed class definition]

Common Certification Challenges

Challenge: Individualized Reliance

Strategies: Establish presumption of reliance; focus on objective materiality.

Challenge: Choice of Law Variations

Strategies: Conduct choice-of-law analysis; consider subclasses; argue laws are similar.

Challenge: Individualized Damages

Response: After Comcast v. Behrend, need damages model matching liability theory. But variation in damages alone doesn't defeat certification if liability is class-wide.

Challenge: Ascertainability

Strategies: Define class using objective criteria tied to defendant's records.