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Class Action Defense Issues: Certification of Class Actions Numerosity Requirement Under Rule 23(a)(1)

Defending Class Actions: Certification Under Rule 23 – Part II

The Numerosity Requirement of Rule 23(a)(1)

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 numerosity requirement of Rule 23(a).

Rule 23(a)(1) of the Federal Rules of Civil Procedure provides that a class action may not be maintained unless “the class is so numerous that joinder of all members is impracticable.” 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. However, no bright line or threshold exists at which the numerosity requirement is met. Each circumstance must be examined on a case-by-case basis. General Telephone Co. v. E.E.O.C., 446 U.S. 318, 330, 100 S.Ct. 1698 (1980).

There are, of course, the obvious cases. See e.g., Georgine v. Amchem Products, Inc., 83 F.3d 610, 626 n.11 (3rd Cir. 1996), aff’d, Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231 (1997) (“This class, which may stretch into the millions, easily satisfies the numerosity requirement.”); In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, 800 (3rd Cir. 1995), cert. denied, General Motors Corp. v. French, 516 U.S. 824, 116 S.Ct. 88 (1995) (“The numerosity requirement of Rule 23(a) is plainly satisfied in this action encompassing nearly six million truck owners.”); Ballard v. Equifax Check Services, Inc., 186 F.R.D. 589, 594 (E.D. Cal.1999) (class of “approximately 1.4 million California residents” satisfied numerosity).

Newberg, however, correctly observes that the test is not so much one of “numerosity” per se, but of the practicality or, more accurately, impracticality of joining all potential class members in a single lawsuit. Newberg on Class Actions, “Prerequisites for Maintaining a Class Action,” §3:5, p. 246-47 (4th ed. 2002). Newberg also opines that forty (40) may be used as a presumptive figure satisfying the numerosity requirement:

In light of prevailing precedent, the difficulty inherent in joining as few as 40 class members should raise a presumption that joinder is impracticable, and the plaintiff whose class is that large or larger should meet the test of Rule 23(a)(1) on that fact alone. Joinder of larger classes might sometimes be practicable, or the action might fail to meet the superiority test of Rule 23(b)(3). Joinder of a smaller class may be impracticable because of the circumstances of the particular case.

Id., at 247 (footnote omitted).

It is important to remember that each case must be examined individually: cases exist above and below this 40-class-member threshold. See e.g., Shields v. Local 705, International Brotherhood of Teamsters, 188 F.3d 895, 897 (7th Cir. 1999) (noting that class consisted of class representative “and 35 other[s]”), Andrews v. Bechtel Power Corp., 780 F.2d 124 (1st Cir. 1985), cert. denied, 478 U.S. 1172, 106 S.Ct. 2896 (1986) (affirming denial of class certification where subclass had a maximum of 49 members for failure to satisfy numerosity requirement).