The Adequacy Of Class Representatives Whose Legal Interests Are Antagonistic To Class Members’ Non-Legal Interests


Federal Rule of Civil Procedure 23(a)(4) requires that ‘‘the representative parties will fairly and adequately protect the interests of the class.’’ This is a wonderfully simple directive. So, what happens when absent class members have no ‘‘interest’’ in the lawsuit? Can a class representative be adequate where class members disagree with the lawsuit, disfavor its objectives, or worse, can be harmed by it? And how often do courts ever really consider such fundamental questions? The answer to the first two questions, under Rule 23(a)(4), should be easy: The class cannot be certified. The answer to the last question is probably ‘‘rarely,’’ but should be: ‘‘Whenever there is evidence that the class, or a substantial portion of it, do not want to have their legal rights asserted through the class device.’’

In most cases, courts and defense counsel confine their analysis of ‘‘adequacy’’ to assessing whether the class representative can adequately present the legal claim, i.e., do the class representative’s legal interests and resources allow him or her to pursue the claim vigorously on its merits? This limited review is myopic, and may often ignore the overall interests and desires of the class. Inadequate class representatives have no incentive to consider the non-legal interests of absent class members, while defendants owe no duty to represent their interests. As a result, the non-legal interests of absent class members may often go ignored.

Originally published in Mealey’s Litigation Report: Class Actions on June 6, 2014.

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