We’re all familiar with the basic requirements of Rule 23(a), with the focus most frequently on the issues of commonality and typicality under Rules 23(a)(2) and (3). Numerosity under Rule 23(a)(1) can on occasion be an issue with smaller groups of claimants, but adequacy of representation under Rule 23(a)(4) is not often litigated.
In Kaur v. Things Remembered, Inc., D.C. Case No. 3:14-cv-o5544-VC (N.D. Cal.), 9th Cir. Case. No. 16-80060 (July 20, 2016), the plaintiffs brought claims for California wage and hour violations against a retail chain. They apparently waited until the last day of the discovery cutoff to file a motion for class certification and had not, by that time, taken a single deposition. To make matters worse, even after the court extended discovery, they lost track of a key plaintiff witness and failed to communicate their difficulties adequately with defense counsel. The district court concluded that the plaintiff’s lawyers “should not be trusted to represent a class of unnamed plaintiffs,” had delayed seeking certification, had failed to timely prosecute the case and had engaged in “unprofessional conduct during discovery.” The court denied certification on the basis of inadequacy of counsel, stating flatly:
“[Plaintiff’s] motion for class certification is denied, because the lawyers for the plaintiff cannot be trusted to “prosecute the action vigorously” on the unnamed plaintiffs’ behalf, Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998), and therefore can’t be trusted to adequately represent the interests of the proposed class.”
The plaintiff sought 23(f) review from the Ninth Circuit, which granted it in a curious opinion. First, the opinion is all of two pages, and yet was designated FOR publication. Second, the court specifically singled out the adequacy of representation issue for review and the question of whether the proper remedy was the denial of certification:
“In addition to all other issues the parties may wish to raise in this appeal, the parties shall brief the issue of whether the district court should have considered less drastic alternatives before denying class certification based on concerns with the vigor of class counsel’s representation. See, e.g., Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1323-24 (11th Cir. 2008) (“In the event that class counsel does act improperly, the ordinary remedy is disciplinary action against the lawyer and remedial notice to class members, not denial of class certification.”) (internal citation omitted).”
Rule 23(a) speaks in terms of whether the representative parties will “fairly and adequately” represent the class, and one would hope that that standard is somewhat above merely avoiding violations of the disciplinary rules. We obviously don’t know which Ninth Circuit judges will ultimately decide the case, but at least these judges were concerned whether the remedy was denial of certification. The Ninth Circuit’s opinion also contains an open-ended invitation amicus briefs, so the case may draw greater national interest.
The bottom line: Adequacy of representation may indeed be a requirement under Rule 23(a)(4), but inadequate representation may prompt an order other than a denial of class certification.