A class action is taken by a group of people who are ranked together as having common
characteristics or attributes, and its function is to assure that from those characteristics or
attributes there arises a common legal position against an opposing party, the legal rights or
obligations of which the court can efficiently and fairly adjudicate in a single proceeding.
The statutory provision relating to class action is old Rule 23 of the Federal Rules of
Civil Procedure, which was enacted initially in 1937. In 1966, the old Rule 23 of the
Federal Rules of Civil Procedure (1937) was replaced by the new Rule 23 of the Federal
Rules of Civil Procedure, which has become a model adopted by many states. The common
requirements for a class action are: (1) the class is too numerous to let all members join the
action; (2) the questions of law or fact are common to the class; (3) the claims or defenses of
the representative parties are typical of the claims or defenses of the class; (4) the
representative parties will fairly and adequately protect the interest of the class.1
The rule sets forth four types of class actions: (1) there is a risk of inconsistent or varying
adjudications,2 (2) the adjudications of some claims of the members of the class will dispose
the interests of other members not party to the adjudications or substantially impair their
ability to protect such interest,3 (3) the defendant has acted or refused to act on grounds
generally applicable to the class,4 and (4) the questions of fact or law common to the
members of the class predominate over questions affecting only individual members, and
class action is superior to other methods of resolution.5
The first three types of classes have a mandatory effect, so that every member of the
class action is bound by the judgment.6 The fourth class action has an optional effect, so that
any member of the class action can file a notice to request exclusion from the class action.7
There are some cases that have adopted the mandatory effect to decide liability and
compensation.8 On the other hand, in some cases the courts have held that because plaintiffs
lack minimum contact with the forum, they cannot be bound by the judgment of the class
action, but they can choose to participate in the class action.9 Moreover, in the fourth class
action, the representatives of the class are required to give individual notice to all class
FED. R. CIV. P. 23(a) (1998)
Abed v. A. H. Robins Co., 693 F.2d 847 (9th Cir. 1982); In re School Asbestos Litigation, 789 F.2d 996 (3d Cir.
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S. Ct. 2965 (1985).
members who can be identified with reasonable effort.10 The representatives of the class
must pay the notice costs, so the representatives must accurately define the scope of the class
within the limitation of their budget.11 However, if uncooperative behaviors on the part of
defendants result in some class members remaining unidentified, the responsibility and costs
to identify the remaining members of the class will transfer to the defendants.12
When the members of a class action are very numerous, the trial and decision-making
aspects of the class action suit will be very difficult, and that difficulty can result in the denial
of the proposal of the class action. For resolving this problem, a new trial approach,
test-case trial, has been adopted in some cases. In this approach, first, the court must select
random samples from the class members; the various sample sizes must appropriately reflect
the numbers of every category of the class members. After selecting the sample members,
the court will rely on the injury and loss of those sample members, to decide the average
damages award amount for every sample member, and such damages will then be applied to
the remaining class members. A test-case trial will produce the effect of collateral estoppel,
which bars the relitigation of the defendant’s duty and its amount.
The test-case trial can save a great number of judicial resources, reduce the parties’
costs, and prevent the procedure of the class action from being impeded by an unmanageable
number of class members; moreover, it can promote voluntary settlement between the
defendant and the remaining plaintiffs. However, to make the result of the test-case trial as
close as possible to the result in case of the all class members in the trial, the selection of the
samples of the representative class members must match the numbers of various category of
the whole class members, and the plaintiffs’ losses and average damages amount must be
FED. R. CIV. P. 23(c)(2) (1998).
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974).
Weinberg v. Hertz Corp., 499 N.Y.S.2d 693 (1986), aff’d, 509 N.E.2d 347 (N.Y. 1987). See also Super Glue
Corp. v. Avis Rent-A-Car Sys., 517 N.Y.S.2d 764 (1987).