Class Action Chart:

STEP 1: DEFINE STEP 2: PROVE STEP 3: FIT STEP 4: PROVE STEP 5: NOTIFYFRCP 23(c) FRCP 23(a) FRCP 23(b) FRCP 23(b)(3) FRCP 23(c)(2)(B)1. Class and Claims.

Class Representative (CR) must be a member of the class (CM).

2. The standard of the analysis:

Rigorous: Party seeking certification (PSC) must prove the four elements of a proper class.

Court must determine whether to certify class “at an early practicable time.”

Order certifying class must (1) define class and class claims and (2) appoint class counsel.

Permits court to direct notice to (b)(1) and (b)(2) class members.

Requires that notice and opportunity to “opt out” be given to (b)(3) class members.

Numerosity. Joinder impracticable.

Commonality. Common question that

resolves an issue central to the validity of each CMs’ claim.

Typicality. CR must possess the

same interest and suffer the same injury typical of the CMs.

Adequacy of Representation.

By CR:Fully motivated and resourced including adequate counsel.

By Counsel:InvestigatedExperiencedFRCP 23(g)

FRCP 23(b)(1) Impaired/ Exposed Class.

Same analysis of these factors as compulsory joinder (FRCP 19) or interpleader (FRCP 22).

FRCP 23(b)(2) Injunction/ Declaration Class. Money must be

“incidental.” Incidental means the

cost of the injunction. Any other money =

NOT a FRCP 23(b)(2) class.

FRCP 23(b)(3) Common/ Money Class.*

*IF FRCP (b)(3), PSC must go on to Steps 4 and 5.

Predominance. Individual questions

must not overwhelm common questions.

Superiority. Members’ interest in

prosecuting their own claim.

Other litigation on the claim.

Suitable forum.

Manageable class.

FRCP 23(b)(3): Becoming more and

more controversial because it is being used for mass torts.

If the Class is certified under FRCP 23(b)(3), CMs must receive notice that meets the requirements of FRCP 26(c)(2)(B).

For exam purposes, notice to CMs must:

1. Meet Mullane standard.

2. Opt-out option.

3. Inform that judgment is binding on CM who receives notice and does not opt out.