Rule 23 and Modern Class Action 1938

Rule 23 and Modern Class Action 1938
Rule 23 and Modern Class Action 1938

Rule 23 and Modern Class Action 1938

As Professor Yeazell has demonstrated, current Federal Rule 23 has a long history, but it is still a work in progress. Professor Rowe has described one of its “origins,” the aptly called “Bill of Peace.” My assignment is to look at the original form of Rule 23 as it appeared in the 1938 Federal Rules. That version of Rule 23 was in existence until 1966, when it was amended as part of a broad revision of the Federal Rules.

What are the Class Certification Requirements Under Federal Rule of Civil Procedure 23? In a class action lawsuit, an attorney representing a named class of people sues on behalf of other people who may be harmed by the outcome of the case.

An antitrust class action typically charges some type of “per se” antitrust infringement, such as a price-fixing conspiracy or market-allocation agreement, with damages that are minor for each class member but enormous in aggregate. If the court declines the plaintiffs’ application to certify a class, each plaintiff must sue individually (read here about appealing a class certification decision). Litigation makes no sense because each member’s damages are usually simply a few dollars or less. In truth, Rule 23 of the Federal Rules of Civil Procedure and class actions in general are designed to provide remedy when the aggregate harm is significant but the individual harm is little.

Important Note: Bona Law only represents defendants and certain opt-out plaintiffs in class-action lawsuits. We do not represent plaintiff groups in any way.
Rule 23(a): Numerosity, commonality, typicality and adequacy

Rule 23(a) of the Federal Rules of Civil Procedure states that an action must meet four criteria to qualify for class treatment: I the class must be large enough that joining all members would be impractical, (ii) there must be questions of law or fact that are common to the class, (iii) the representative parties’ claims must be typical of the class’s claims, and (iv) the representative parties must fairly and adequately protect the class’s interests.


The Field Code (1848);

Attorneys’ Fee Awards (1975);

Limits on Punitive Damages (1996);

Google Books and Fair Use (2010).


Rule 23 and Modern Class Action 1938

What are the Requirements for Class Certification Under Federal Rule of Civil Procedure 23

The Law Book: From Hammurabi to the International Criminal Court, 250 Milestones in the History of Law (Sterling Milestones) Hardcover – Illustrated, 22 Oct. 2015, English edition by Michael H. Roffer (Autor)