The Class Action Guide to Certification Hearings

A class action lawsuit enables a large number of people who have suffered the same or similar injuries to sue the defendant in a single lawsuit as a “class.” However, before a lawsuit can proceed as a class action, a certification hearing must be held to determine whether the class members are similar enough to proceed as a class.

What Is a Class Action Lawsuit Certification Hearing?

A class action lawsuit certification hearing is the process that is used to assess whether a class action is the best way to manage the multiple plaintiffs in the case. The judge determines whether the prerequisites for class certification are met by conducting a hearing, where the putative class must prove that they meet the requirements. The court must certify the class before it can continue as a class action.

What Happens After a Class Action Is Certified?

After the class is certified, all potential class members must be notified of the class action lawsuit. The judge will order how the potential plaintiffs can be provided notice, with common methods being commercials, newspaper publications, mail, and e-mail.

Otherwise, the case continues in a similar manner to other types of litigation. Discovery, where each party can request information, documents, and other materials from the other, can start. Parties may also file pre-trial motions and engage in settlement negotiations.

What Is Federal Rule 23?

Rule 23 of the Federal Rules of Civil Procedure is the part of federal law that governs the class certification process. Federal Rule 23(a) establishes four criteria for a putative class to be certified: numerosity, commonality, typically, and adequacy.


The numerosity requirement determines whether there are enough plaintiffs for proceeding as a class action lawsuit to make sense. Rule 23 requires that “the class is so numerous that joinder of all members is impracticable.”


In deciding commonality, a judge will determine whether the claims are sufficiently similar to justify handling them in a single case. Rule 23 describes this requirement as whether “there are questions of law or fact common to the class.”


For a class action to proceed, there must be certain plaintiffs who serve as “class representatives,” and represent all the other class members. For the typicality requirement to be met, Rule 23 states that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.”


The adequacy prerequisite established by Rule 23 requires the judge to determine whether “the representative parties will fairly and adequately protect the interests of the class.”

Rule 23(b) Requirements

In addition to the four requirements outlined in Rule 23(a), Rule 23(b) instructs that one of the following conditions must also be satisfied:

Prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members
Prosecuting separate actions would create a risk of adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests.

The party opposing the class has acted or refused to act on grounds that apply generally to the class so that relief is appropriate respecting the class as a whole.

Questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

How Long Does It Take To Certify a Class Action Lawsuit?

Because every class action lawsuit is different, it is impossible to say how long it takes to certify a class action lawsuit. Some class actions can be resolved in a few months, but most take several years to reach a settlement. Because a class must be certified before the case can proceed as a class action lawsuit, the certification hearing will occur early in the overall timeline of the case. However, the length of time it takes for a class to be certified will vary between cases.

How Is a Class Action Lawsuit Paid Out?

Class action lawsuits are paid out in various ways, but the three most common methods are pro rata, common fund, and claims made settlements.
With a pro rata class action settlement, the money is divided equally among all class members of the class. Common fund class action settlements involve the establishment of a single fund that is paid out to class members using a formula determined by the parties. In claims made settlements, class members must file a valid claim to receive payment. The defendant then pays the total value of all the claims submitted.

When Should I Contact a Class Action Attorney?

If you’re part of the class for an existing class action lawsuit, you should receive a notice explaining how to participate. In some situations, this may require you to contact a class action attorney, but in many class action lawsuits, you will automatically be included as part of the class unless you opt out.

If you believe you should be included in a class, but don’t receive notice, you can often learn how to join the class online, as most class actions have their own informational websites. You will usually need to contact a class action attorney in these situations, but the website should provide information on how to join the class.

Finally, if you have been injured in a situation you believe justifies a class action lawsuit but a case has not yet been initiated, you should contact a class action attorney as soon as possible to discuss your options.

Have Questions?


How to Join a Class Action Lawsuit

The Ultimate Guide to Federal Rule 23