Florida Bar Journal

Considerations in Class Certification

Rule 1.220 of the Florida Rules of Civil Procedure is perhaps the most conceptually complex rule of civil procedure. In essence, the rule allows a person or entity who has a claim or defense in common with others to represent the group. The class action is not a new mechanism. English common law provided for a similar equitable remedy known as a “bill of peace.” Recently, interest in the class action has heightened. This is largely due to the increasingly overcrowded judicial system searching for more efficient ways to administer justice. Thus, the purpose of the class action focuses on judicial economy and access to justice. Long ago the Florida Supreme Court stated in Tenney v. City of Miami Beach, 11 So. 2d 188 (Fla. 1942): “[t]he purpose of a ‘class suit’ is to save the multiplicity of suits, to reduce the expense of litigation, to make legal procedure more effective and expeditious, and to make available a remedy that would not otherwise exist.”

Consequently, even though only one lone voice stands to protect and raise the rights of others, this is not reason to deny class certification and may be the reason to grant it.¹

The foregoing benefits must be tempered against concerns of due process. Rule 1.220 provides for this protection.² This article addresses the principal issues associated with class certification.³

Class Certification—Factual Inquiry
Two principal questions arise with regard to the class certification process. First, whether an evidentiary hearing is required or advisable; and, second, what factual matters should be considered.

Rule 1.220 does not expressly require an evidentiary hearing. Nevertheless, an evidentiary hearing is generally required unless it is clear from the pleadings that class certification is appropriate. Barton-Malow Co. v. Bauer, 627 So. 2d 1233, 1235 (Fla. 2d DCA 1993). Failure to conduct an evidentiary hearing may constitute error. Id.

Federal interpretations of Rule 23 follow this approach. See generally Bradford v. Sears, Roebuck & Co., 673 F.2d 792 (5th Cir. 1982); Woodworkers v. Chesapeake Bay Plywood, 659 F.2d 1259 (4th Cir. 1981). The Manual for Complex Litigation states that “[a]lthough the rule does not specifically require a hearing, one will generally be desirable; some courts have held that a hearing is required before denial of certification, and one may also be necessary where the factual basis for a class action is challenged.”⁴

It is also important to understand what matters should, and should not, be considered at the class certification stage. At the class certification stage, the court should only determine whether the requirements of Rule 1.220 are met, and not consider the substantive merits of the claims or defenses. See generally Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 177–178 (1974). Thus, for purposes of class certification the court generally should accept the plaintiffs’ substantive allegations as true. See In Re: Carbon Dioxide Antitrust Litigation, 149 F.R.D. 229 (M.D. Fla. 1993). Nevertheless, the court may look behind the pleadings and consider all facts and legal issues involved. CV Riet, Inc. v. Levy, 144 F.R.D. 690 (S.D. Fla. 1993); Brooks v. Southern Bell Tel. & Tel. Co., 133 F.R.D. 54 (S.D. Fla. 1990). In other words, the merit of the claims made or defenses is not an area for inquiry but the nature of the claims as they relate to the class certification requirements does require examination.

Class Certification Requirements
In order to certify a class, the court must determine whether a proposed class meets the requirements of Rule 1.220. Rule 1.220(a) sets forth the following four prerequisites that every class action must meet: numerosity; commonality; typicality; and adequacy of representation. In addition, the court must find that the proposed class falls into one of the following three requirements under Rule 1.220(b): limited fund/inconsistent standards, injunctive relief, or common predominance. The following discussion addresses prerequisites to class certification and the specific Rule 1.220(b) requirements.

Prerequisites to Class Certification
The proponent of the class certification must demonstrate numerosity, common issues, typicality of claims, and adequate representation. In Re: Amerifirst Securities Litigation, 139 F.R.D. 423 (S.D. Fla. 1991). Thus, the proponent of class certification bears the burden of making an affirmative showing that the prerequisites are met. See R.J. Reynolds Tobacco Co. v. Engle, 672 So. 2d 39 (Fla. 3d DCA 1996); Southern Bell Tel. & Tel. Co. v. Wilson, 305 So. 2d 302 (Fla. 3d DCA 1974).

• Numerosity. In order to satisfy the numerosity requirement, the class must be “so numerous that separate joinder of each member is impracticable.” Rule 1.220(a)(1). As a threshold matter, the class must be sufficiently defined as to make it administratively feasible for the court to determine whether a particular person is a member. See Rodriguez v. U.S. Department of the Treasury, 131 F.R.D. 1, 7 (D.D.C. 1990). Note, however, that the proponent need not identify each member of the class at the outset. Holly v. City of Naples, 371 So. 2d 501 (Fla. 2d DCA 1979).

Generally, courts view the numerosity requirement liberally; “impracticable” does not mean “impossible.”⁵ Rather, the proponent of class certification must demonstrate that joinder of all class members would be extremely difficult or inconvenient.⁶

There is no magic number. Nevertheless, both Florida and federal courts have held that fewer than 100 plaintiffs may satisfy the numerosity requirement. Estate of Robinger v. Deltona Corp., 563 So. 2d 739, 743 (Fla. 2d DCA 1990) (classes as small as 25 have fulfilled numerosity requirement of the rule); In Re: Kirschner Medical Corp. Securities Litigation, 139 F.R.D. 74 (D. Md. 1991) (class of as few as 25 to 30 members raises the presumption that joinder would be impractical); Fifth Moorings Condominium Inc. v. Shere, 81 F.R.D. 712 (S.D. Fla. 1979) (suggests that if the class exceeds 40 people there is sufficient numerosity under the rule); Fidelis Corp. v. Litton Industries, 293 F. Supp. 164 (S.D.N.Y. 1968) (35 members certified). But see Hum v. Derkicks, 162 F.R.D. 628, 634 (D. Hawaii 1995) (class with 200 potential members not sufficiently numerous).

• Commonality. The claims of the representative plaintiffs must raise questions of law or fact common to the questions of law or fact raised by the claim of each member of the potential class.⁷ The “threshold of ‘commonality’ is not high. . . the Rule requires only that resolution of the common questions affect all or a substantial number of class members.” Jenkins v. Raymark Industries, 782 F.2d 468 (5th Cir. 1986), quoted with approval in Broin v. Phillip Morris Co., Inc., 641 So. 2d 888 (Fla. 3d DCA 1994).

Commonality can be met where a single common issue runs throughout the claims. Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258 (S.D. Cal. 1988). Class certification should not be denied merely because the claim of one or more class representatives arises in a factual context that varies somewhat from that of the other plaintiffs. Love v. General Development Corp., 555 So. 2d 397 (Fla. 3d DCA 1989); Morgan v. Laborer’s Pension Trust Fund for Northern Cal., 81 F.R.D. 669 (N.D. Cal. 1979) (courts shall not deny class certification merely because claim of one or more class representatives arises in a factual context that varies somewhat from that of other plaintiffs.); Broin v. Phillip Morris Co., Inc., 641 So. 2d 888 (Fla. 3d DCA 1994) (variations in amount of damages and statute of limitations not fatal to class representation).

• Typicality. The representative plaintiff’s claim must be typical of the claims of the class. A named plaintiff’s claim will be found to be typical if it arises from the same event or conduct giving rise to the claims of absent class members.

Courts require that the claims of the representative plaintiffs rest on the same legal and remedial theories as the unnamed members of the class. Jenkins v. Raymark, 782 F.2d 468 (5th Cir. 1986). Consequently, typicality is not defeated by different amounts of damages among class members and their representatives. Cohen v. Camino Sheridan, Inc., 466 So. 2d 1212 (Fla. 4th DCA 1985). Nevertheless, the factual circumstances surrounding the representative plaintiff’s claim must be sufficiently similar to the class as to avoid conflict. This requirement often is viewed as overlapping with the adequacy requirement.⁸

• Adequacy of Representation. The representative parties must “fairly and adequately protect and represent the interests of each member of the class.” Rule 1.220(a)(4). Adequacy of representation is a two-party inquiry which requires that: 1) “class counsel must be qualified, experienced and generally able to conduct the litigation”; and 2) “class members [and representative plaintiffs] must not have interests that are antagonistic to one another.” In Re: Drexel Burnham Lambert Group, Inc., 960 F.2d 285 (2d Cir. 1992); see also Jenkins v. Raymark, 782 F.2d 468 (5th Cir. 1986); Griffin v. Carlin, 755 F.2d 1516 (11th Cir. 1985); Hessen v. Metropolitan Dade Co., 513 So. 2d 1330 (Fla. 3d DCA 1987); Port Royal Inc. v. Conboy, 154 So. 2d 734 (Fla. 2d DCA 1963) (interests of representative plaintiffs must be co-extensive with those of the class).

The court should consider whether putative class counsel is qualified and experienced. If counsel cannot conceptualize how the class litigation will be conducted, the endeavor will undoubtedly fail. In addition to experience, putative class counsel must have the financial wherewithal to advance potentially tremendous costs. Class counsel also must possess adequate staff and computer database systems to communicate with and service the class members.

It is also necessary that the representative plaintiff’s interests are aligned with those of the class. This inquiry turns on the particular facts of the case. Port Royal Inc. v. Conboy, 154 So. 2d 734 (Fla. 2d DCA 1963). Conceptually, the court must examine whether the representative plaintiff will be motivated to act in a way which is contrary to some members of the class. For example, a class which settles the claims of present and future claimants for asbestos exposure is inherently flawed because of inherent conflict. Present claimants seek the maximum present recovery but future claimants seek to preserve capitol. See Georgine v. Amchem Products, Inc., 83 F.3d 610 (3d Cir. 1996).

Specific Requirements of Rule 1.220(b)
Three types of classes may be certified under Rule 1.220(b): classes where the rights of absent members’ rights would be determined; classes which seek injunctive relief; and generic classes in which common issues predominate. The requirements for each class type is addressed below.

• Rule 1.220(b)(1)—Inconsistent Standards/Impairment of Interests. Rule 1.220(b)(1) provides for certification where:

(1) The prosecution of separate claims or defenses by or against individual members of the class would create a risk of either:
(A) inconsistent or varying adjudications concerning individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications concerning individual members of the class which would, as a practical matter, be dispositive of the interests of other members of the class who are not parties to the adjudications, or substantially impair or impede the ability of other members of the class who are not parties to the adjudications to protect their interests.

This type of class action generally focuses on the party from whom relief is sought. Rule 1.220(b)(1)(B) typically arises in the limited fund context where damage recovery by some claimants would reduce or exhaust the defendant’s available funds for remaining claimants. Similarly, Rule 1.220(b)(1)(A) often focuses on the defendant. For example, when a number of taxpayers seek to have a municipal bond issue declared invalid and others seek to have the terms changed, the municipality might be forced to follow incompatible standards of conduct. In this situation, a class under Rule 1.220(b)(1)(A) is appropriate. See Advisory Committee Notes to Federal Rule 23(b)(1), Clause A. For obvious reasons a Rule 1.220(b)(1) class is a non-opt-out class.

• Rule 1.220(b)(2)—Injunctive Relief Classes. Rule 1.220(b)(2) provides for certification of injunctive relief classes where two requirements are met. First, “the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class.” Second, the representative plaintiff is seeking “final injunctive or declaratory relief.”

It usually is plain whether the plaintiff is seeking injunctive relief. For example, this provision has traditionally been used in discrimination and civil rights cases to enjoin the defendant from further improper conduct. The rule has also been applied in other contexts. See, e.g., City of Miami Beach v. Tenney, 7 So. 2d 136 (Fla. 1942) (a petition to contest the validity of a tax may be certified).

Medical monitoring is one area in which issues have been raised as to the injunctive nature of the relief sought. Some courts have held that injunctive relief ordering medical monitoring is appropriate. See In Re: NLO, Inc., 5 F.3d 154 (6th Cir. 1993) (in radiation exposure case medical monitoring claims are injunctive in nature and cognizable under Rule 23(b)(2)). But see Ball v. Joy Technologies, 958 F.2d 36 (4th Cir. 1991) (medical monitoring merely an element of damages). It appears to be important that the medical monitoring program is court-supervised rather than simply an element of damages in order to meet the “injunctive” requirement of the rule. See Cook v. Rockwell Int’l Corp., 151 F.R.D. 387 (D. Colo. 1993) (certifying a court-supervised medical monitoring program in radiation exposure case).

Any petition for injunctive relief or declaratory judgment may be certified if generally applicable to a class. The “generally applicable” requirement is usually not difficult to satisfy.

• Rule 1.220(b)(3)-Predominance/Superiority. When a proposed class does not fall within Rule 1.220(b)(1) or (b)(2), the court may certify a class under Rule 1.220(b)(3). Rule 1.220(b)(3) requires that: 1) questions of law or fact common to the class predominate over any questions affecting individual members of the class; and 2) a class action would be superior to other available methods for the fair and efficient adjudication of the controversy. The rule provides that when making the foregoing inquiry, the court shall consider all relevant facts and circumstances, including:

(1) the respective interests of each member of the class in individually controlling the prosecution of separate claims or defenses, (2) the nature and extent of any pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated, (3) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted, and (4) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class.

Rule 1.220(b)(3)(A)–(D).

In other words, the court should consider whether class certification is desirable and beneficial.

The inquiry regarding the predominance requirement is pragmatic (i.e., whether there are enough common questions to make class treatment worthwhile). See In Re: “Agent Orange” Product Liability Litigation, 100 F.R.D. 718 (E.D.N.Y. 1983), cert. denied, 465 U.S. 1067 (1984).⁹ Where the action presents a common interest and all members of the class have a similar interest in obtaining the relief sought, class certification is appropriate. See Port Royal v. Conboy, 154 So. 2d 734 (Fla. 2d DCA 1963); Love v. General Development Corp., 555 So. 2d 397 (Fla. 3d DCA 1989).

Contemporary Florida cases do not strictly construe this requirement. A general course of conduct applicable to the class is sufficient. Broin v. Phillip Morris Co., Inc., 641 So. 2d 888, 890 (Fla. 3d DCA 1994) (“plaintiffs must merely establish a common claim arising from the same practice or course of conduct that gave rise to the remaining claims and. . . based on the same theory.”) (citation omitted); see also Colonial Penn Ins. Co. v. Magnetic Imaging Systems, I, Ltd., 22 Fla. L. Weekly D1370 (Fla. 3d DCA, June 4, 1997) (“claims which arise out of the same course of conduct by a defendant but arise in differing factual contexts may be plead as a class action if they present a common question of interest.”)

The superiority requirement concerns judicial function. Thus, courts focus on whether the class will alleviate a significant multiplicity of litigation or make adjudication more accessible. For example, where a defendant constructs homes which contain common construction defects, the class mechanism will avoid the needless repetition. In this circumstance, it has been observed that:

[I]t is evident that handling the numerous claims involved on an individual basis would be burdensome and inefficient and would require a costly, time consuming and repetitive presentation of the same evidence on common issues in the numerous claims involved. “The very purpose of a class suit is to save a multiplicity of suits, to reduce the expense of litigation, to make legal processes more effective and expeditious, and to make available a remedy that would not otherwise exist.” Frankel v. City of Miami Beach, 340 So. 2d 463, 466 (Fla. 1976), quoting Tenney v. City of Miami Beach, 152 Fla. 126, 11 So. 2d 188, 189 (1942).

Rivera v. Arvida/JMB Partners, Case No. 92–21130 (Dade Co. 1993).

Consequently, superiority may be found where many plaintiffs can access the court who would not otherwise be able to do so or where significant economies are achieved. The court should consider the alternatives to class certification, i.e., individual suits or consolidation.

Rule 1.220(d)(4)—Individual Issues/Subclasses
Rule 1.220(d)(4) provides that the court may certify particular issues for class treatment and may also certify subclasses. This provision affords the court and the litigants significant flexibility in crafting a class action which will meet the requirements of Rule 1.220.

The bifurcation of certain issues has long been applied to separate damages claims from issues of liability. The rule may also be applied more creatively to avoid needless duplicative trials on the same issues.

For example, contemporary pressures on the judicial system have caused modern courts and commentators to reexamine the applicability of the class action device to mass tort situations by bifurcating liability from specific causation and damages.¹⁰ Courts now recognize that application of the class action procedural device to the mass tort situation can avoid needless repetitive presentation of the same evidence and litigation of the same legal issues.¹¹ The court, however, should proceed with caution. Judge Posner, writing for the U. S. Seventh Circuit Court of Appeals, reasoned that such bifurcation violates the Seventh Amendment, because the jury would necessarily consider the defendant’s liability for a second time in the causation and damages phase. In Re: Rohne-Poulenc Roher, Inc., 51 F.3d 1293 (7th Cir. 1995). This reasoning is generally not followed. See In Re: Copley Pharmaceutical, Inc., 161 F.R.D. 456 (D. Wyo. 1995). Similar bifurcation can be applied in other contexts which are not so fraught with difficulty.

The creation of subclasses is another creative method by which the litigation can be made more manageable. Plaintiffs are grouped in a manner which more readily satisfies the requirements of Rule 1.220. Subclasses may be created at the class certification stage or fashioned later as the issues develop. The specific facts of each action determine the necessity and prudence of subclasses.

Conclusion
In sum, under appropriate circumstances, the class action device can serve two extremely important functions. First, it can help to alleviate overcrowded court dockets by addressing otherwise repetitive issues on one occasion. Second, it can provide justice to persons with relatively small damages that would not otherwise be able to litigate their claims.

¹ This view has long been held in federal courts. In Week v. Bareco Oil Co., 125 F.2d 84, 90 (7th Cir. 1941), the court stated: “[t]o permit the defendant to contest liability with each claimant in a single separate suit would, in many cases, give defendants an advantage which would almost be equivalent to closing the door of justice to small claimants. This is what we think the class suit practice was to prevent.”
² Note that Fla. R. Civ. P. 1.220 is based upon Fed. R. Civ. P. 23. Florida courts apply federal construction and application of Rule 23 where appropriate. Powell v. River Ranch Property Owners Assn., Inc., 522 So. 2d 69 (Fla. 2d D.C.A. 1988). Consequently, this article incorporates federal interpretations of Fed. R. Civ. P. 23.
³ It is important to note that at the pleading stage the court should be careful not to pass on the propriety of class certification. The proponent of class certification must plead with specificity the facts and circumstances supporting class certification and cannot simply repeat Fla. R. Civ. P. 1.220. See Dade Co. Police Benevolent Ass’n, Inc. v. Metropolitan Dade County, 452 So. 2d 6 (Fla. 3d D.C.A. 1984), rev. denied, 461 So. 2d 6 (1984). More importantly, however, the court should reserve ruling on a motion to dismiss until the proponent of class certification has had a sufficient opportunity to take discovery to “ascertain necessary information that must be pled.” Cordell v. World Ins. Co., 355 So. 2d 479 (Fla. 1st D.C.A. 1978).
⁴ Manual for Complex Litigation (3d ed. 1995) (citations omitted).
⁵ Wright, Miller & Kane, Civil 2d §1762.
⁶ Id.
⁷ Note that in a Fla. R. Civ. P. 1.220(b)(3) class, common questions not only must exist but must predominate individual issues. Thus, the commonality inquiry is generally subsumed by the predominance inquiry with regard to a Fla. R. Civ. P. 1.220(b)(3) class.
⁸ See Wright, Miller & Kane, Civil 2d §1764.
⁹ See also Wright, Miller & Kane, Civil 2d §1778.
¹⁰ See, e.g., David Rosenberg, Class Action for Mass Torts: Doing Individual Justice by Collective Means, 62 Ind. L.J. 561 (1986–87); Comment, Federal Mass Tort Class Actions: A Step Toward Equity and Efficiency, 47 Alb. L. Rev. 1180 (1983).
¹¹ See, e.g., Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988); see also Newberg on Class Actions §17.1 (3d ed. 1992);

Ervin A. Gonzalez, Miami, is board certified in civil trial law by The Florida Bar and the National Board of Trial Advocacy. He is a former director of the Dade County Trial Lawyers Association and secretary of the Dade County Bar Association. Mr. Gonzalez is an adjunct professor at the University of Miami Law School, teaching pretrial litigation skills.

Raymond W. Valori is a trial attorney with the law firm of Robles & Gonzalez, P.A., Miami. He concentrates his practice in the areas of complex litigation and products liability. Mr. Valori received his bachelor’s degree in architectural engineering from Pennsylvania State University in 1988, and his J.D., magna cum laude, from the University of Miami School of Law in 1994.

This article was initially presented in outline form at the 1996 Judicial Conference, entitled, “To Certify or Not to Certify; Application of the Rule 1.220 Class Action Requirements.”

This article is submitted on behalf of the Trial Lawyers Section, David W. Bianchi, chair, and D. Keith Wickendon, editor.