Class-Representative Adequacy: Preparing for and Responding to Attacks on Plaintiffs

A class action can be maintained if, among other things, “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In opposing class certification, defendants frequently argue that Rule 23(a)(4)’s adequacy requirement is not met with respect to the plaintiffs proffered as class representatives. Accordingly, starting with selection of the class representative and continuing through the certification and possible decertification phase of class litigation, plaintiff’s counsel should be mindful of potential attacks on the plaintiff’s adequacy and the plaintiff’s potential responses to these assaults.