The Three Routes to Certification
Satisfying the prerequisites establishes that a class could exist. It does not establish which kind. Three categories are available, they are not interchangeable, and the choice determines whether members receive individual notice and whether they may exclude themselves.
The rule in short
Rule 23(b) supplies three categories. The first covers cases where separate actions would risk incompatible standards for the party opposing the class or would impair the interests of absent members. The second covers cases where the opposing party acted on grounds applying generally to the class so that final injunctive or declaratory relief is appropriate. The third covers cases where common questions predominate and a class action is superior.
A class action may be maintained only if the prerequisites are satisfied and the case fits one of three categories. The categories are not alternative labels for the same thing. They rest on different justifications for binding absent people to a judgment, and those justifications determine what notice is required, whether members may leave, and how closely the court will examine the representation.
Incompatible standards and practical impairment
The first category has two limbs, and both are concerned with what separate actions would do rather than with efficiency. The first limb applies where prosecuting separate actions would create a risk of inconsistent or varying adjudications that would establish incompatible standards of conduct for the party opposing the class. The classic setting involves a defendant that must act uniformly, such as a body administering a single plan, where one judgment ordering it to do a thing and another forbidding the same thing would be impossible to obey.
The second limb applies where adjudications for individual members would, as a practical matter, be dispositive of the interests of absent members or substantially impair their ability to protect those interests. Its familiar application is the limited fund, where a pool insufficient to satisfy all claims would be exhausted by the first claimants. That application is narrow: the fund's inadequacy must be established rather than assumed, and the whole of it must be devoted to the claims.
The injunctive and declaratory category
The second category applies where the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. The test is whether a single order can provide the relief. Where each member would require a different remedy, the description does not hold, however similar the underlying conduct.
Because the relief is indivisible, the rule creates no exclusion right and requires no individual notice, leaving notice to the court's discretion. That absence of an exit is the reason courts examine cohesion carefully in this category, and it explains the resistance to certifying substantial individualized monetary claims here. Money that must be calculated person by person is not relief appropriate to the class as a whole, and attaching it to an injunctive class deprives members of protections the third category would have given them.
A proponent selects the category in the motion, but the court is not confined to that selection and may certify under a different one, certify only particular issues, or divide the class into subclasses treated as classes in their own right. Where an intra-class conflict exists, subclassing with separate representation is frequently the condition on which certification is granted rather than a refinement offered afterward.
The damages category
The third category is the workhorse and the most demanding. It requires the court to find that questions of law or fact common to class members predominate over questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The rule then lists the matters pertinent to those findings: members' interests in controlling separate actions, litigation already begun, the desirability of concentrating the litigation in the forum, and the likely difficulties in managing a class action.
The listed matters are not a scoring sheet. They direct attention to whether aggregation actually improves on the alternatives available in this particular controversy. Where members hold substantial claims and are already litigating them individually, the first two matters weigh against certification. Where claims are small enough that no individual action is realistic, they weigh in favor, because the practical alternative to a class action is no adjudication at all rather than many separate ones.
The protections attached to this category follow from the fact that individual claims for money are being adjudicated collectively. The court must direct the best notice practicable under the circumstances, including individual notice to all members identifiable through reasonable effort, and the notice must state that the court will exclude any member who requests exclusion together with the time and manner for doing so. The substance of those requirements is examined in notice to the class and the right to opt out.
| Category | Justification | Notice | Exclusion right |
|---|---|---|---|
| Incompatible standards | Uniform conduct is required of the opposing party | Discretionary | None |
| Practical impairment or limited fund | Individual suits would exhaust or foreclose relief | Discretionary | None |
| Injunctive or declaratory | A single order resolves the matter for everyone | Discretionary | None |
| Damages | Common questions predominate and aggregation is superior | Best notice practicable, individual where feasible | Required |
| Particular issues | One issue is suitable for classwide resolution | Follows the category relied on | Follows the category relied on |
Hybrids, subclasses and issue classes
Real cases rarely present a clean fit. A challenge to a practice may support injunctive certification while the accompanying damages claims fail predominance, and courts respond by certifying the injunctive class and leaving damages to individual actions, or by certifying particular issues. The rule expressly permits both moves, and it permits division into subclasses each treated as a class, which is the standard response to a conflict between segments of the group.
Subclassing is not costless. Each subclass needs its own representative and, where the conflict is genuine, its own counsel, which multiplies the adequacy inquiry and the expense. Courts nonetheless require it where one segment's interests are opposed to another's, because a single representative cannot advance both. That constraint is examined further in adequacy of the named plaintiff and counsel.
Certification for settlement purposes
A class may be certified for the purpose of judgment on a proposed settlement, and the rule contemplates this expressly by requiring the court to find that it will likely be able both to approve the proposal and to certify the class for that purpose before notice goes out. The requirements do not relax. Manageability at trial drops out of the analysis because no trial will occur, but predominance, adequacy and the rest apply with full force.
A further protection is available where the class was previously certified under the damages category and members already had one chance to exclude themselves. The court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual members who let the earlier opportunity pass. The provision is discretionary, and it addresses the fact that a decision to remain in a litigating class is a different decision from acceptance of a particular settlement.
The reason for that insistence is practical. A settlement class binds people who never had a chance to test the claims, so the structural protections are the only protections. The mechanics of approval, and the findings the court must make, are set out in judicial approval of a class settlement.
Points to carry away
- The first category addresses the risk of incompatible standards of conduct or practical impairment of absent members' interests.
- The second category requires that final injunctive or corresponding declaratory relief be appropriate for the class as a whole.
- The third category requires predominance of common questions and superiority over other available methods.
- Individual notice and the right to request exclusion are mandatory only for the third category.
- Certification of particular issues and division into subclasses are available in any category.
Questions readers ask
Why are the first two categories described as mandatory?
Because the rule provides no right to request exclusion from them. For a class certified under either, the court may direct appropriate notice, but the rule does not require individual notice and it creates no exclusion mechanism. The reasoning is structural: a class formed to prevent incompatible standards of conduct or to obtain a single injunction cannot serve that purpose if members leave. The absence of an exit is also why courts scrutinize adequacy of representation more closely in these categories.
Can monetary relief be obtained in an injunctive class?
Only in a limited way. The category is drawn for cases where a single injunction or declaratory judgment would provide relief to the class as a whole, and individualized damages claims do not fit that description. Claims for money that require individualized determinations are ordinarily pursued, if at all, under the damages category with its predominance requirement, its notice and its exclusion right. Attempting to attach substantial individual monetary relief to an injunctive class is a recurring ground for reversal.
What does issue certification accomplish?
The rule permits an action to be brought or maintained as a class action with respect to particular issues. That allows a court to certify, for example, the question whether a product was defectively designed while leaving causation and damages to individual proceedings. It is a management tool rather than a route around the requirements, since the certified issue must itself satisfy the category relied on, and the court must still be able to see how the remaining individual questions will be resolved.
Sources
- Federal Rule of Civil Procedure 23 — Class ActionsSets out the three categories, notice requirements and issue certification.
- Federal Rules of Civil Procedure — current textThe judiciary's publication of the operative rules and committee notes.
- 28 U.S. Code § 1332 — Diversity of citizenship; amount in controversyContains the jurisdictional provisions applicable to class actions.
- 28 U.S. Code § 1453 — Removal of class actionsGoverns removal and appellate review of remand in class actions.
- 28 U.S. Code § 1711 — DefinitionsDefines class action and related terms for the settlement provisions.
- Federal Judicial Center — Manual for Complex Litigation, FourthDescribes management practices associated with each category.
Pinnacle Law Review is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Class Actions
Predominance and Superiority in a Damages Class
Certification of a damages class requires findings that common questions predominate over individual ones and that a class action is superior to other available methods of adjudication. Predominance is a qualitative weighing of the issues that would be tried, not a count of them. Superiority considers members' interests in separate control, litigation already begun, the desirability of the forum, and the manageability of a class trial.
Expert Evidence at the Certification Stage
Because certification requirements are proved rather than pleaded, courts receive expert opinions on class membership, common impact and damages methodology. The evidentiary rule requires that expert testimony rest on sufficient facts, reliable principles and methods, and a reliable application of those methods. Circuits differ on how completely that screening must be performed at certification, but a model that does not match the certified theory of liability fails regardless.
The Four Threshold Requirements
Rule 23(a) permits representative litigation only where the class is so numerous that joinder is impracticable, questions of law or fact are common to the class, the representatives' claims or defenses are typical, and the representatives will fairly and adequately protect the interests of the class. A court must conduct a rigorous analysis, which frequently overlaps with the merits, and the party seeking certification bears the burden on each element.