The four threshold requirements and the three routes to certification, predominance and superiority, the named plaintiff's adequacy, expert evidence at the certification stage, appealing a certification decision, notice and the right to opt out, judicial approval of a settlement, objectors, and consolidation of related cases before one judge.
Certification of a damages class requires findings that common questions predominate over individual ones and that a class action is superior to other available methods of adjudication. Predominance is a qualitative weighing of the issues that would be tried, not a count of them. Superiority considers members' interests in separate control, litigation already begun, the desirability of the forum, and the manageability of a class trial.
Because certification requirements are proved rather than pleaded, courts receive expert opinions on class membership, common impact and damages methodology. The evidentiary rule requires that expert testimony rest on sufficient facts, reliable principles and methods, and a reliable application of those methods. Circuits differ on how completely that screening must be performed at certification, but a model that does not match the certified theory of liability fails regardless.
Rule 23(a) permits representative litigation only where the class is so numerous that joinder is impracticable, questions of law or fact are common to the class, the representatives' claims or defenses are typical, and the representatives will fairly and adequately protect the interests of the class. A court must conduct a rigorous analysis, which frequently overlaps with the merits, and the party seeking certification bears the burden on each element.
Rule 23(b) supplies three categories. The first covers cases where separate actions would risk incompatible standards for the party opposing the class or would impair the interests of absent members. The second covers cases where the opposing party acted on grounds applying generally to the class so that final injunctive or declaratory relief is appropriate. The third covers cases where common questions predominate and a class action is superior.
Adequacy asks whether the representative parties will fairly and adequately protect the interests of the class. It examines conflicts between the representative and absent members, the representative's engagement with the litigation, and separately the qualifications of counsel. A court certifying a class must appoint class counsel, considering the investigation done, counsel's experience and knowledge, and the resources to be committed.
Claims of a certified class, or of a class proposed to be certified for settlement, may be settled only with the court's approval. The parties must first supply information sufficient to decide whether to give notice, and the court directs notice only if satisfied it will likely be able to approve the proposal and certify the class. Approval follows a hearing and requires a finding that the proposal is fair, reasonable and adequate.
Civil actions involving one or more common questions of fact pending in different districts may be transferred to any district for coordinated or consolidated pretrial proceedings, where transfer will serve the convenience of parties and witnesses and promote the just and efficient conduct of the actions. Transfers are ordered by a panel of seven circuit and district judges, no two from the same circuit, with four concurrences required for any action.
For a class certified under the damages category, or on ordering notice of a proposed settlement of such a class, the court must direct the best notice practicable under the circumstances, including individual notice to all members identifiable through reasonable effort. Notice may be given by mail, electronic means or other appropriate means, and must state seven specified matters in plain, easily understood language.
A court of appeals may permit an appeal from an order granting or denying class certification, but not from an order merely directing notice of a proposed settlement. A petition must be filed with the circuit clerk within fourteen days after the order is entered, extended to forty-five days where the United States or a federal officer or agency is a party. The appeal does not stay proceedings below unless a court so orders.
In a certified class action a court may award reasonable attorney's fees and nontaxable costs authorized by law or by the parties' agreement. The claim is made by motion at a time the court sets, with notice directed to class members in a reasonable manner, and any member or paying party may object. Courts use a percentage of the recovery or a lodestar computation, often checking one against the other, and coupon relief is governed by statute.
Any class member may object to a proposal requiring court approval, and the objection must state whether it applies to the objector alone, to a subset, or to the entire class, and must state its grounds with specificity. An objector who appeared may appeal from approval without intervening. No payment may be provided in connection with forgoing or withdrawing an objection, or abandoning an appeal, unless the court approves it after a hearing.
