A Discovery Checklist for Defeating Certification on Adequacy Grounds

In mapping out a case strategy to defeat class certification, Federal Rule of Civil Procedure 23(a)(4)’s adequacy requirement can take a backseat to the more traditional factors such as predominance, typicality, and commonality. The adequacy requirement, however, can have real teeth and should not be given short shrift. But to tee up an inadequacy argument sufficient to defeat certification, discovery on this subject must be more than an afterthought. By using the checklist below and giving due consideration to the facts relevant to the adequacy inquiry, defense counsel can rigorously test whether the named plaintiff and his or her counsel can “fairly and adequately” represent the putative class.