Defending Class Actions: Certification Under Rule 23 – Part II
The Commonality Requirement of Rule 23(a)(2)
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 commonality requirement of Rule 23(a).
Rule 23(a)(2) of the Federal Rules of Civil Procedure provides that a class action may not be maintained unless “there are questions of law or fact common to the class.” It has been said that numerosity and commonality “form the core of the class-action concept.” Newberg on Class Actions, “Prerequisites for Maintaining a Class Action,” §3:13, p.316. As the Third Circuit noted, “‘commonality’ like ‘numerosity’ evaluates the sufficiency of the class itself, and ‘typicality’ like ‘adequacy of representation’ evaluates the sufficiency of the named plaintiff.” Hassine v. Jeffes, 846 F.2d 169, 176 n.4 (3d Cir.1988).
“Rule 23 does not require that the representative plaintiff have endured precisely the same injuries that have been sustained by the class members, only that the harm complained of be common to the class, and that the named plaintiff demonstrate a personal interest or ‘threat of injury . . . [that] is “real and immediate,” not “conjectural” or “hypothetical.”’” Hassine, at 177 (quoting O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669 (1974). Thus, in Georgine, supra, the Third Circuit held that “commonality” did not exist because “this class is a hodgepodge of factually as well as legally different plaintiffs.” Georgine v. Amchem Products, 83 F.3d at 632.
As the Supreme Court explained,
The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.
General Telephone v. Falcon, 457 U.S. 147 at 157 n.13.