Defending Class Actions: Certification Under Rule 23 – Part II
The Typicality Requirement of Rule 23(a)(3)
In defending a class action, the single most important motion facing a defendant is the plaintiff’s motion to certify a class. Rule 23(a) requires that the plaintiff demonstrate numerosity, commonality and typicality, and that the class members will be adequately represented, and must additionally demonstrate that the action satisfies Rule23(b). The class action requirements of Rule 23 are mandatory. Thus, class certification requires that the prospective class representative satisfy the elements set forth in Rule 23(a), as well as the elements of Rule 23(b) (discussed in a separate article) be met. General Telephone Co. of Southwest v. Falcon, 457 U.S. 152, 102 S.Ct. 2364 (1982) (reversing class certification for failure to analyze Rule 23 requirements). This article discusses the typicality requirement of Rule 23(a).
Rule 23(a)(3) of the Federal Rules of Civil Procedure provides that a class action may not be maintained unless “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Unlike numerosity and commonality, which focus on the characteristics of the class, typicality and adequacy of representation (discussed separately) focus on the characteristics of the plaintiff representative of the class. Hassine v. Jeffes, 846 F.2d 169, 176 n.4 (3rd Cir.1988); Newberg on Class Actions, “Prerequisites for Maintaining a Class Action,” §3:13, pp.316-17 (4th ed. 2002).
“The typicality criterion focuses on whether there exists a relationship between the plaintiff’s claims and the claims alleged on behalf of the class.” Newberg, at 317 (citing General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 102 S.Ct. 2364 (1982)). Newberg also states that “typicality of claims seeks to assure that the interests of the representative are aligned with the common questions affecting the class,” id., at 319 (footnote omitted).
The Supreme Court has explained, “The typicality requirement is said to limit the class claims to those fairly encompassed by the named plaintiffs’ claims.” General Telephone Co. of the Northwest v. Equal Employment Opportunity Commission, 446 U.S. 318, 330, 100 S.Ct. 1698 (1980). The typicality analysis asks
“whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same conduct.”
Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quoting Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal. 1985)).
Put another way,
Typicality refers to the nature of the claim or defense of the class representative and not to the specific facts from which it arose or to the relief sought. Factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.
Newberg, at 335 (footnote omitted).
The inquiry is admittedly closely connected both to Rule 23(a)(2)’s commonality test, see e.g., Ridgeway v. International Broth. of Elec. Workers, Local No.134, 74 F.R.D. 597, 604 (D.C. Ill. 1977) (“when the allegations raise an across the board challenge to allegedly discriminatory employment practices, both the commonality and typicality requirements are satisfied where the defendant’s practices and policies have resulted in illegal discrimination”), and Rule 23(a)(4)’s adequate representation test, see e.g., Eisenberg v. Gagnon, 766 F.2d 770, 786 (3rd Cir. 1985) (“To a large extent, [typicality] overlaps the requirements that the named representatives adequately represent the class, that there be common questions of law and fact, that such questions predominate, and that the class action be a superior means of resolution.”).