Class action lawyers are well aware that the burden to affirmatively demonstrate compliance with Rule 23 rests on the plaintiffs. Over the years, courts have elaborated somewhat on the burdens plaintiffs must meet for numerosity and commonality, but have remained somewhat vaguer when it comes to typicality.

Last week, a trial court in the Eastern District of Missouri took a leap into that void in Henke v. Arco Midcon, L.L.C., No. 4:10CV86, 2014 U.S. Dist. LEXIS 31810 (E.D. Mo. Mar. 12, 2014). Henke was an environmental class action alleging groundwater contamination from leaks from an oil pipeline. There were a number of problems with the proposed class, but among the, the court found that the named plaintiffs were not typical. In addition to reviewing the evidence that the defendants provided of the plaintiffs' unique circumstances, the court also took the plaintiffs to task for not meeting their burden in the first place. And what did that burden look like?

Plaintiffs also offer no basis for comparison of their claims across the class - only conclusory allegations that assume prospective class members are similar. There is no specific comparison of Plaintiffs to any prospective class member in terms of their use or ownership of the land, the circumstances surrounding their grievances, or the relief they may seek.

(Emphasis added.)

Given that plaintiffs' class certification briefs can often be maddeningly vague, this statement of the typicality inquiry is an extremely useful one for defendants. If the plaintiffs have not offered evidence that shows that they're similar, they may not be able to show typicality at all. It is not enough to assert the same claims, the plaintiffs must share similar circumstances. If they cannot offer evidence they do, they cannot meet their burden.