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With respect to the number of plaintiffs that must be included in a class action, the rule does not provide a specific number. Instead, the rule requires that the class be “so numerous that joinder of all members is impracticable.” Fed R. Civ. P. 23(a)(1).
What Does Impracticability of Joinder Mean?
Impracticability of joinder means the court must be convinced that it would be unreasonable due to complexity for all plaintiffs with their own claims against the same defendant to separately bring their claims in a joint action. A class action allows instead for a single plaintiff to represent a whole class of plaintiffs in such situations.
Factors Considered for Impracticability of Joinder
The real inquiry under Rule 23 is not the number of people affected, but whether joinder would be impractical. Under the rule, Plaintiffs need not show that joinder is impossible, but simply that the difficulty or inconvenience of joining all members of the class mitigate in favor of class treatment of their claims. While Courts have not provided a specific number for how many plaintiffs are needed to meet the numerosity requirement, they have instead looked at a number of factors to determine whether joinder of claims is impracticable. These factors include the ease of locating plaintiffs; the relative size and similarity of claims; geographical distance between plaintiffs; their financial resources and ability to institute individual actions; the amount of their individual claims; whether they have already joined other actions; judicial economy; and whether the claims are for injunctive relief or for damages. In addition, some courts have considered the fear of retaliation of class members bring an individual action as a factor in determining the numerosity requirement.
Courts have repeatedly held that repeated litigation of common issues in dozens of individual actions would be grossly inefficient, costly and a waste of judicial resources, and thus it is usually impractical to join 40 or more persons. In fact, Professor Newberg, the leading commentator on class actions, conducted a nationwide survey of court rulings on the numerosity issue concluding that any class consisting of 40 or more members should raise a presumption that joinder is impracticable.
As a result, courts have generally found numerosity where there is over 40 plaintiffs but been far less likely to find numerosity where there is less than 20 plaintiffs. In certain cases such as a securities class action involving a nationally traded security, the numerosity requirement is presumed to be satisfied.
Benefits of Aggregating Individual Claims
As the Supreme Court has explained, a “principal purpose” of class actions is to advance “the efficiency and economy of litigation.” A class action also enables large numbers of persons injured by a defendant’s unlawful conduct to obtain relief as a group when each class member’s individual claim is too small to justify the expense of a separate suit. Many times, when a defendant causes comparatively small injuries to a large number of people, no plaintiff alone has a sufficient financial incentive to bring an individual action because the costs of prosecuting the lawsuit would far exceed the maximum award the victim could recover. As the Supreme Court has further explained, a class action resolves this “problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney*s) labor.”
For example, say a defendant injures a million consumers for $10.00 in damages each. If each plaintiff had to file their own lawsuit to recover the money he lost, few would take the trouble to do so because the costs of prosecuting the lawsuit would far exceed the maximum award each victim could recover. If, however, an individual plaintiff could bring a single class action lawsuit on behalf of everyone the defendant wronged to resolve the common questions, then the plaintiff could potentially aggregate each class member’s $10.00 loss, resulting in a potential $10 million recovery. That $10 million potential award would then make it economically rational for attorneys to expend time and resources to pursue the class’s claims. In this way, class actions compensate victims who might otherwise go uncompensated.
Timothy L. Miles
Timothy L. Miles is a nationally recognized shareholder rights attorney raised in Nashville, Tennessee. Mr. Miles was recentely selected by Martindale-Hubbell® and ALM as a 2022 Top Ranked Lawyer, 2022 Top Rated Litigator. and a 2022 Elite Lawyer of the South Mr. Miles also maintains the AV Preeminent Rating by Martindale-Hubbell®, their highest rating for both legal ability and ethics. Mr. Miles is a member of the prestigious Top 100 Civil Plaintiff Trial Lawyers: The National Trial Lawyers Association, a superb rated attorney by Avvo, a recipient of the Lifetime Achievement Award by Premier Lawyers of America (2019) and recognized as a Distinguished Lawyer, Recognizing Excellence in Securities Law, by Lawyers of Distinction (2019).
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