FRCP 23(a)(4) and 23(g): Challenging or Supporting the Adequacy of Class Representatives and Class Counsel

Description

Certification is doomed unless both class representatives and class counsel can adequately represent the members of a class. Rules 23(a)(4) and 23(g) are inextricably intertwined and are necessary to guard the due process rights of absent class members.

Starting at the pre-certification stage, the defense counsel's goal is to expose facts demonstrating that the named plaintiff, proposed class counsel, or both cannot fairly and adequately protect the interests of class members.

Equally important, class counsel must be qualified, experienced, and generally able to conduct the litigation. Courts have considered numerous factors other than those listed in FRCP 23(g) to withhold approval or even revoke approval of class counsel. All aspects of counsel's relationship with the proposed class representative, defendants, and members of the class in other cases come under scrutiny. Engagement letters and litigation financing arrangements are increasingly the subject of discovery.

Irrespective of the type of class action, Plaintiffs seeking class certification in federal court must satisfy a number of threshold requirements, including (1) the implicit requirements of an adequate class definition and an ascertainable class and (2) the threshold prerequisites set forth at Rule 23(a). The fourth of these prerequisites, described at Rule 23(a)(4) and commonly referred to as the “adequacy” requirement, requires Plaintiffs to establish that “the representative parties will fairly and adequately protect the interests of the class.” As a general matter, the adequacy requirement covers class representatives, their counsel, and the relationship between the class representatives and their counsel. Rule 23(g) also governs considerations for adequacy of class counsel.

Listen as our authoritative panel of class litigators discusses the adequacy requirement from both plaintiffs and defendants perspectives. The panel will address practical techniques for selecting and vetting class representatives most likely to be deemed ‘adequate’ and considerations of defendants for challenging the adequacy requirements under Rules 23(a)(4) and 23(g).