arbitration and waiving a litigant’s right to bring or participate in class actions areenforceable under the Federal Arbitration Act.Opt-In Procedures – Under 29 U.S.C. § 216(b), a collective action member must opt-into join the lawsuit before he or she may assert claims in the lawsuit or be bound by ajudgment or settlement.Opt-Out Procedures – If a court certifies a class under Rule 23(b)(3), class membersare bound by the court’s judgment unless they opt-out after receiving notice of thelawsuit.Numerosity – Plaintiffs must show that their proposed class is sufficiently numerousthat adding each class members to the complaint would be impractical. This is arequirement for class certification imposed by Rule 23(a)(1).Ortiz, et al. v. Fibreboard Corp., 527 U.S. 815 (1999) – Ortiz is the U.S. SupremeCourt ruling that interpreted Rule 23(b)(3) to require personal notice and an opportunityto opt-out of a class action where money damages are sought in a class action.Predominance – The Rule 23(b)(3) requirement that, to obtain class certification, theplaintiffs must show that common questions predominate over any questions affectingindividual members.Rule 23 – This rule from the Federal Rules of Civil Procedure governs class actions infederal courts and requires that a party seeking class certification meet fourrequirements of section (a) and one of three requirements under section (b) of the rule.Rule 23(a) – It prescribes that a class meet four requirements for purposes of classcertification, including numerosity, commonality, typicality, and adequacy ofrepresentation.Rule 23(b) – To secure class certification, a class must meet one of three requirementsof Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3).Rule 23(b)(1) – A class action may be maintained if Rule 23(a) is satisfied and ifprosecuting separate actions would create a risk of inconsistent or varying adjudicationswith respect to individual class members or adjudications with respect to individual classmembers that, as a practical matter, would be dispositive of the interests of the othermembers not parties to the individual adjudications or would substantially impair orimpede their ability to protect their interests.Rule 23(b)(2) – A class action may be maintained if Rule 23(a) is satisfied and the partyopposing the class has acted or refused to act on grounds that apply generally to theclass, so that final injunctive relief or corresponding declaratory relief is appropriaterespecting the class as a whole.Rule 23(b)(3) – A class action may be maintained if Rule 23(a) is satisfied andquestions of law or fact common to class members predominate over any questions6© Duane Morris LLP 2023Duane Morris Class Action Review – 2023
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