October 27, 2016 Practice Points

Third Circuit: Six Factors Decide Rule 23(a)(1) Numerosity

Learn the rules from a so-called pay-for-delay antitrust case involving a branded drug called Provigil

by Adam E. Polk

On September 13, 2016, the U.S. Court of Appeals for the Third Circuit issued an opinion specifying the appropriate means of analyzing Rule 23(a)(1)’s numerosity requirement in In Re Modafinil Antitrust Litigation, No. 15-3475 (3d Cir. Sept. 13, 2016). The Third Circuit held that courts should consider six factors to determine whether numerosity is satisfied:

  1. Judicial economy;
  2. Class members’ motivation to litigate as joined plaintiffs;
  3. The financial resources of class members;
  4. The geographic dispersion of class members;
  5. The ability to identify future claimants; and
  6. Whether the claims are for injunctive relief or damages.
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