Numerosity Analysis Fix Can Improve Class Cert. Decisions

Law360 (July 28, 2020, 3:53 PM EDT) -- The first prerequisite for class certification is, according to Federal Rule of Civil Procedure 23(a)(1), a class "so numerous that joinder of all members is impracticable."[1]

If joinder is practicable, there is no need for a class action, which the U.S. Supreme Court emphasized is "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only" in Wal-Mart Stores Inc. v. Dukes in 2011.[2]

Numerous cases have analyzed numerosity, creating elaborate multifactor tests in the process.[3] As this case law has developed, it has become untethered to the text of Rule 23. There is...

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