Adequacy of Representation

Under Rule 23(a)(4), a large body of case law authority has developed the standards for adequacy of both the named class representatives and class counsel. Adequacy is an essential aspect of the due process applicability to class actions. To preserve the viability of the class action procedural device the assurance of adequacy is often asserted as the most critical of Rule 2’s mandates. It is not rhetorical to ask: How else can our system of justice impose as binding on non-parties a judgment obtained without adequacy of representation?

If the rights and interests of absent class members are to be protected the court has the duty to assure that the two proponents of those interests are adequate to the task and act in accordance with that adequacy. The point of beginning for the class representative is that they have no conflict with other class representatives or with the class and that he agrees to vigorously prosecute the action.

It is necessary to eliminate so far as possible the likelihood that the litigants are involved in a collusive suit or that the Plaintiff has interests antagonistic to those of the remainder of the class.

It is not uncommon for proposed class representatives to be challenged as being inadequate because they know too little about the action and the law as well as because they know too much. Proposed class representatives have been challenged because they are too well educated or have too little formal education. The courts pay scant attention to such challenges. The question is usually resolved quickly when a review is offered of a single, definitive case: Surowitz v. Hilton Hotels, Inc., 383 U.S. 363 (1966) and the tale of Mrs. Surowitz.

In class action, it is always very telling when the defendant complains that the proposed class representatives have ''no personal knowledge'' of the case or claims. This simply misstates the proper role of a class representative.

All courts recognize that the class representative’s role is limited. No less an authoritative body than the Supreme Court of the United States has been presented with and resolved the issue of who may be a suitable class representative. In relating the story of Mrs. Surowitz the Supreme Court was confronted with the dismissal by the district court of her proposed class action and her application to be the class representative as well as the affirmation of that dismissal by the Seventh Circuit Court of Appeals. In reversing both the trial and appellate courts and remanding the case for further proceedings on the merits of the class claim, the Supreme Court criticized the two lower courts and approved Mrs. Surowitz as the class representative, saying: The federal rules were designed in large part to get away from some of the old procedural booby traps which common-law pleaders could set to prevent unsophisticated litigants such as Mrs. Surowitz from ever having their day in court.

It is worth a moment to observe the class representative in Surowitz as the Supreme Court described her, and to compare her with the usual volunteers who offer to serve as class representative.

Mrs. Surowitz, the only name plaintiff, was a Polish immigrant who saved $2,000 from her work as a seamstress in a New York garment factory and invested the entire amount in securities of Hilton hotels. She spoke very little and halting English, had practically no formal education, did not understand the complaint in the action for which she was applying to be the sole class representative, nor did she understand and could not explain the statements made in the class action complaint, she had essentially no knowledge as to what the lawsuit was about, could not name the defendants and did not know the nature of the defendants’ misconduct alleged in the complaint; she merely relied upon her son-in-law’s advice.

The Supreme Court observed:

Her limited education and her small knowledge about any of the English language, except the most ordinarily used words, probably is sufficient guarantee that the courts below were right in finding that she did not understand any of the legal relationships or comprehend any of the business transactions described in the complaint.

Nonetheless, the Supreme Court rebuked the district and appellate courts and, in doing so, established the criteria authoritative for any court confronted with a challenge to adequacy.

In its ill-founded affirmation of the district court, the Seventh Circuit attempted to establish a rule that was rejected by the Supreme Court. In its erroneous attempt, the Seventh Circuit said:

[the class action rule] requires that a plaintiff must have knowledge of his own position and relationship to the suit, of the official identity of the parties against whom the suit is brought and general knowledge of the wrongful acts which he alleges as a foundation for this complaint. Id.

The Supreme Court, in rejecting the above Seventh Circuit’s proposed standard, enunciated the definitive authority and guidance for the bench and bar.

If rules of procedure work as they should in an honest and fair judicial system, they not only permit, but should as nearly as possible guarantee that a bona fide complaint is to be carried to an adjudication on the merits. Rule 23(b), like the other civil rules, was written to further, not defeat the ends of justice…The dismissal the case brought by Mrs. Surowitz was error because Mrs. Surowitz knew that she had invested her money and was the victim of a scheme by the defendant. She knew she suffered the loss of her investment because of that wrongful scheme. That’s all that the Supreme court said was necessary to sustain a class case and to be a class representative in that action.

When a challenge is made to a proposed class representative’s adequacy today the resulting certification order issuing from the court usually contains language similar to Surowitz.

It would seem fundamental and elementary that a defendant would much prefer class litigation with an ineffective, inadequate class representative and a class presenting claims that are so widely divergent that a jury will reject them. However, the purpose and the legitimate aim of the class action procedural mechanism demands that the absent class members be bound by the ultimate resolution of the case only if their collective entitlement to constitutional due process has been met. Thus, the intuitive impression that the defendant would prefer incompetent, inadequate class counsel, if allowed to occur, would be counter-productive. The binding res judicata effect would not exist and the defendant could be confronted with re-litigating the case again, perhaps multiple times. That scenario would disallow the peace that a binding, res judicata resolution would bring to the matter at issue.

Professor Jean Burns addressed the seeming enigma surrounding the class representative’s relatively nominal role in class action litigation:

[T]he class action simply does not function like the traditional private-rights lawsuit around which most common law jurisprudence and practice has developed. The class action may have some similarity with the traditional lawsuit, in that the class representative occupies the position of a traditional plaintiff or defendant, but that similarity is merely superficial.

First and foremost, unlike the traditional model of litigation, which involves a dispute between two private individuals with unitary interests, the class action is fundamentally a device to resolve the problems of a group of individuals. The class action is not an application of rights, duties, and remedies to an individual case brought by a particular person seeking his day in court . . . A single action or practice of a corporation or governmental agency may affect hundreds or thousands of people. The class action permits the affected group to challenge the activity and to aggregate (and to some extent average) their individual circumstances and interests in seeking relief.

Jean W. Burns, Decorative Figureheads: Eliminating Class Representatives in Class Actions, 42 Hastings Law J. 165 (1990).

Find An Attorney

Law

City

State

Adequacy of Representation

List Your Office