Requirements for a Class Action – Certifying a Class
The requirements for a plaintiff to bring a class action against a defendant are as follows:
• Certify the Class – The primary hurdle for the plaintiff is to “certify” all potential plaintiffs as a class. To certify a class, the plaintiff(s) must present evidence of the following:
⁃ Numerosity – The class is so numerous that joinder of class members in a trial outside of a class action is impracticable;
⁃ Commonality – There must be questions of law or fact common to the class;
⁃ Typicality – The claims (harms suffered) or defenses of the class representatives are typical of those of the class;
⁃ Adequacy – The class representatives will fairly and adequately protect the interests of the class; and
⁃ Any of the following:
⁃ Risk of Inconsistency – Hearing separate actions risks either inconsistent adjudications and standards or any one action would be dispositive of cases by other parties;
⁃ Defendant’s Obstinance – The defendant fails to act on any grounds or causes of actions by the defendants, or
⁃ Note: Denying the class does not give rise to immediate appeal. The case must be tried to a result first. This procedural requirement places a significant hurdle in the way of individuals trying to get certified as a class.
⁃ Discussion: In recent years, Wal-Mart was the subject of a class action lawsuit for gender discrimination in hiring, promotion, and salary. The court denied class status to the plaintiff on the grounds that all plaintiffs did not suffer the same type of harm. Gender discrimination in hiring is not sufficiently similar to discrimination in promotion and salary so that the plaintiffs are representative of all class members. Do you believe that the requirement that each plaintiff be representative of all class members should be construed more strictly or loosely?