Identifying Class Members Prior to Certification

April 8, 2016Articles The Legal Intelligencer

Class certification is perhaps the most important step in proceeding with a class action claim. Courts have long recognized that "certification of a large class may so increase the defendant's potential damages liability and litigation costs that he may find it economically prudent to settle and to abandon a meritorious defense," as in Coopers & Lybrand v. Livesay, 437 U.S. 463, 476 (1978).

As a practical matter, a substantial number of class action lawsuits are decided at the class certification phase. The ascertainability of a class—i.e., the ability to actually identify class members—is an "implied prerequisite" to class certification. Federal Rule of Civil Procedure 23, which governs class actions, enumerates four requirements for class certification: The plaintiff must affirmatively show (1) numerosity of the parties to make joinder impracticable or impossible; (2) commonality of legal and factual issues; (3) typicality of the claims and defenses of the class representative; and (4) adequacy of representation by the class representative.

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*Emily M. Kowey was highly involved in the research and instrumental in the drafting of this article.