Typicality

The rule provides that the claims or defenses of the representative parties should be typical of the claims or defenses of the class. While the commonality criterion requires that the defendant’s course of conduct and its effect be similar across the proposed class, typicality looks to the relationship between the claim of the proposed class representative and the claim of the absent class. A popular shorthand among the class action bar defines typicality thusly: If each absent class member were to bring a separate action upon the same claim would that individual plaintiff be required to prove essentially the same as the proposed class representative? If so, the claims are typical of each other.

Typicality (and adequacy as well) presents an interesting irony. When class counsel compose their pleadings one could not reasonably expect counsel to announce the failure of their pleadings and the proposed class with regard to the typicality relationship of the class members. Pleading typicality as notice of the material and ultimate facts of the case brought to the court are critical components of the proposed representatives’ pleadings.

Thus, defendants opposing the class certification are placed in the anomalous position of urging upon the court the lack of typicality of the claims and that the proposed class representative is not adequate to present the best case for the class. It can be presumed that it will be the rare defendant who desires to be confronted in court by only the most typical claims and the most adequate adverse party as the class representative.

Whether it wins or loses on the merits the defendant has a distinct and personal interest in assuring that the entire plaintiff class becomes bound by res judicata effect of the ultimate result just as it is bound.

The challenge to typicality generally is focused on the differences in the degree of in the ways and causes of class members’ injury and the assertion that each class member would necessarily be examined individually to determine those matters and the defendant’s culpability as to each. In most cases the courts find little difficulty in assessing typicality and authoring decisions like the following:

Defendant. relying on its deposition of plaintiffs, argues that they do not all allege the same kinds of damage they claim on behalf of the classes they purport to represent. According to defendant this proves as a matter of logic that plaintiffs’ claims are not typical. But defendant appears to misapprehend the nature of Rule 23(a)(3)’s requirement. Although the Advisory Committee’s Notes do little to illuminate this aspect of the rule, decisional law has made clear that whether or not it has independent significance the importance of the typicality requirement lies in assuring that the named plaintiffs will adequately represent those who are unnamed. Differences in the degree of harm suffered, or even in the ability to prove damages do not vitiate the typicality of the representative’ claims. Typicality, therefore, should be evaluated in terms of the plaintiffs’ claims as to liability. With this in mind, we find the named plaintiffs’ claims typical of the classes they seek to represent. Proof of defendant’s liability for the alleged pollution of the air and Lake Champlain will benefit all members of the proposed classes: that the damages. if any, may reach a de minimis level at some point among the class members does not make the named plaintiffs claims atypical.

And another explanation of the common misunderstanding of typicality:

In this case the district court was concerned by what it viewed as the vast factual differences surrounding the medical condition of each of the named Plaintiffs. These factual distinctions, however, have little or no relevance to the relief requested by the plaintiffs. Federal law. It does not appear that the factual differences surrounding the medical conditions of the various plaintiffs would preclude the district court from determining whether the plaintiffs are entitled to the relief they seek. The similarity of the legal theories shared by the class at large is so strong as to override whatever factual differences might exist and dictate a determination that the named plaintiffs’ claims are typical of those of the putative class.

Even profound differences in the discrete method of causing loss or injury to class members rarely result in failure of certification on the typicality criterion of Rule 23.

Even relatively pronounced factual differences will generally not preclude a finding of typicality where there is a strong similarity of legal theories or where the claim arises from the same practice or course of conduct.

Generally, the typicality requirement is not demanding and does not require a complete identity of claims. Rather, as the Second Circuit recently said:

The rule is satisfied ... if the claims of the named plaintiffs arise from the same practice or course of conduct that gives rise to the claim of the proposed class members.

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