Complex Litigation: Issues of Adequacy

Abstract

Commentary and analysis of the Rule 23(a)(4) requirement to certify a proposed class action that the proponents establish that the class representatives and class counsel are adequate to represent the interests of absent class members. The article discusses how the 1966 amendment to Rule 23 revitalized the importance of the threshold adequacy requirement, and the Supreme Court’s refocused attention on the adequacy requirement in Amchem Prods. Inc. v. Windsor (1997) and Ortiz v. Fibreboard Corp. (1999). The article discusses the Supreme Court’s articulation of adequacy doctrine and the varying standards for assessing adequacy developed by the lower state and federal courts. The article examines the criteria used to assess adequacy of class counsel, including the quality, experience, and resources of class counsel, and the possibility for conflicts-of-interest with the class. The article also surveys the various factors courts have developed to assess the adequacy of proposed class representatives, from minimalist standards to detailed lists of requirements, such as the Sixth Circuit’s list of eight factors to assess adequacy in shareholder derivative litigation