Class Actions under Rule 23(a) of the Federal Rules of Civil Procedure - A Nationwide Examination of the Requirement of Commonality Across the Federal Circuits 

Rule 23(a) of the Federal Rules of Civil Procedure provides that: 

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: 

(1) the class is so numerous that joinder of all members is impracticable; 

(2) there are questions of law or fact common to the class; 

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 

(4) the representative parties will fairly and adequately protect the interests of the class. 

See USCS Fed Rules Civ Proc R 23. The following is a nationwide examination of the requirement of commonality in class action suit across the federal circuits. This examination is a tool to aid professionals on issues related class actions. Please note that the following is a brief overview. Every case is different, and we should be consulted for further analysis on pending actions. 

Upon review, if you have any further questions or concerns as to how the requirement of commonality in a class action suit may apply to your company, we, at Thomas Paschos & Associates, P.C. would be glad to speak with you. One of our attorneys specializing in this field can speak with you today about our services. Contact Thomas Paschos & Associates, P.C. for more information. We can be reached at 856-354-1900 or 267-205-2444. You can also contact Thomas Paschos, Esq. at TPaschos@pascholaw.com. 

1st Circuit 

A question is common if it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. See Parent/Pro. Advocacy League v. City of Springfield, 934 F.3d 13, 28 (1st Cir. 2019.) 

The commonality requirement is a low hurdle, and even a single common question can satisfy this element. See In re Ranbaxy Generic Drug Application Antitrust Litig., 338 F.R.D. 294, 301 (D. Mass. 2021.) 

The thrust of the commonality inquiry is not truly the raising of common questions, even in droves, but rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. See Martins v. 3PD, Inc., 2013 U.S. Dist. LEXIS 45753, at *16 (D. Mass. Mar. 28, 2013.) 

Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. This requirement cannot be met, however, simply by showing that the class members have all suffered a violation of the same provision of law, since such a showing would give no cause to believe that all class members’ claims can productively be litigated at once. See Kenneth R. v. Hassan, 293 F.R.D. 254, 266 (D.N.H. 2013.) 

The fact that class members suffered different damages does not bar class certification. Where class members have different degrees of injury or even where defenses might exist only as to particular individuals, commonality has been found for class certification. See Applegate v. Formed Fiber Techs., LLC, 2012 U.S. Dist. LEXIS 105264, at *18 (D. Me. July 27, 2012.) 

The 1st Circuit has found commonality in the following fact patterns to justify class certification under Rule 23(a) of the FRCP: 

• In a case where “[t]he [direct purchaser plaintiffs] DPPs contend[ed] that commonality is satisfied as to both the antitrust and RICO claims[,] [t]hey note[d] that all class members allege injury from the same misconduct, namely the purported anti-competitive scheme to delay the entry of cheaper generic drugs into the market” and “[t]hey also assert[ed] that their RICO claims depend[ed] on common issues such as whether the evidence will prove a RICO conspiracy, enterprise and pattern of racketeering activity.” “Th[e] Court [found] that, because the DPPs [had] shown that their claims focus on defendants’ conduct, commonality ha[d] been sufficiently pled.” See In re Ranbaxy Generic Drug Application Antitrust Litig., 338 F.R.D. 294, 301. 

• Where “[t]he putative class [was] composed of “individuals who performed delivery services . . . for 3PD[]”[,] [t]he inquiry under Part 2 [was] whether delivery services were in the usual course of 3PD’s business”, and the Court stated that “[n]ot only does this present common issues of law and fact, but only evidence common to the class is relevant to this consideration.” See Martins v. 3PD, Inc., 2013 U.S. Dist. LEXIS 45753, *16-17. The Court stated that “[t]here is also a sufficient showing of commonality as to Part I of the Section 148B test” where “[t]he DSAs governing the class members work for 3PD are nearly identical, and the undisputed facts show that 3PD systematically applied the same kinds of policies to each of the drivers”, which “…is precisely the kind of “general policy” contemplated by the Supreme Court in Wal-Mart that lends itself to class litigation.” See Martins v. 3PD, Inc., 2013 U.S. Dist. LEXIS 45753, *17(citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 2553, 180 L.Ed.2d 374 (2011).) 

• “The plaintiffs and intervenor claim[ed] that the State of New Hampshire unnecessarily institutionalizes people with serious mental illnesses, in violation of the integration mandates of the Americans With Disabilities Act, 42 U.S.C. § 12131(2), and the Rehabilitation Act, 29 U.S.C. § 794”, and “[t]he named plaintiffs [sought] certification of an appropriate class, doc. no. 73, and class-based relief”; “The United States, as intervenor, support[ed] the motion for class certification” but “Defendants object[ed], however, arguing that the requirements for certification under Fed. R. Civ. P. 23(a) and 23(b)(2) [were] not met.” See Kenneth R. v. Hassan, 293 F.R.D. 254, 258. 

• “Here, common questions include whether a mass layoff occurred at Formed Fiber’s facility in Auburn, Maine, and, if so, when the mass layoff occurred, whether Formed Fiber provided sixty days’ advance notice of a mass layoff, whether Formed Fiber violated the WARN Act by executing a mass layoff without providing sixty days’ advance written notice, and whether, and in what amount, laid off employees are entitled to damages in the form of wages and fringe benefits for any period of WARN Act violation.” See Applegate v. Formed Fiber Techs., LLC, 2012 U.S. Dist. LEXIS 105264, *16. 

2nd Circuit 

What matters to class certification is not the raising of common questions but rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation. To demonstrate such a capacity, Rule 23(a)(2) simply requires that there be issues whose resolution will affect all or a significant number of the putative class members. See Barrows v. Becerra, 2022 U.S. App. LEXIS 2174, at *21 (2d Cir. Jan. 25, 2022.) 

Rule 23(a)’s commonality prerequisite is satisfied if there is a common issue that drives the resolution of the litigation such that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Consideration of this requirement obligates a district court to determine whether plaintiffs have suffered the same injury. See Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 84 (2d Cir. 2015.) 

Indeed, what matters to class certification is not the raising of common questions—even in droves—but rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation. Where a movant seeks to enjoin a practice or policy, rather than individualized relief, commonality is assumed. See Vidal v. Wolf, 2020 U.S. Dist. LEXIS 213068, at *43 (E.D.N.Y. Nov. 14, 2020.) 

Rule 23(a)(2) requires that there be questions of law or fact common to the class. Plaintiffs must present evidence that a common factual nexus exists among the purported class. However, the commonality requirement is to be liberally construed. The commonality standard does not mandate that the claims of the lead plaintiff be identical to those of all other plaintiffs. Rather, it requires that plaintiffs identify some unifying thread among the members’ claims that warrants class treatment. See Evans v. N.Y.C. Transit Auth., 2020 U.S. Dist. LEXIS 180623, at *11–12 (S.D.N.Y. Sep. 30, 2020.) 

The commonality requirement is met if plaintiffs’ grievances share a common question of law or fact. However, commonality does not mandate that all class members make identical claims and arguments, only that common issues of fact or law affect all class members. A court may find a common issue of law even though there exists some factual variation among class members’ specific grievances. See Stinson v. City of New York, 282 F.R.D. 360, 369 (S.D.N.Y. 2012.) 

Although some courts tend to merge Rule 23’s commonality prong with the typicality prong, the commonality requirement is distinct from typicality in that it tests the definition of the class itself rather than focusing on the relationship between the putative class representative and the other class members. See In re Vitamin C Antitrust Litig., 279 F.R.D. 90, 99 (E.D.N.Y. 2012.) 

The 2nd Circuit has found commonality in the following fact patterns to justify class certification under Rule 23(a) of the FRCP: 

• “Here, all class members claim to have suffered the same injury—they were denied Medicare Part A coverage that they were entitled to because they were unable to challenge their reclassifications from inpatients to outpatients receiving observation services”; “As the Secretary notes, some class members were harmed because their hospital costs were not reimbursed, while others were harmed because their post-hospitalization SNF care was not covered.” See Barrows v. Becerra, 24 F.4th 116, 131. “The common questions raised in the lawsuit have the capacity to generate class-wide answers: (1) Does a URC decision to reclassify a patient constitute state action because CMS’s national guidelines and regulations significantly encourage or coerce URC behavior? (2) Are there concrete and objective factors that dictate Part A coverage such that beneficiaries have a protected property interest in Part A? (3) Are beneficiaries entitled to an appeals process in the reclassification decision? Each of these questions focuses on the centralized actions of CMS and the Secretary.” See Barrows v. Becerra, 24 F.4th 116, 131 (footnote omitted.) 

• “[Plaintiffs’] overarching claim is that defendants systematically filed false affidavits of merit and, in many instances, false affidavits of service to fraudulently procure default judgments in New York City Civil Court. Whether a false affidavit of merit or a false affidavit of service or both were employed in a particular instance, the fact remains that plaintiffs’ injuries derive from defendants’ alleged unitary course of conduct, that is, fraudulently procuring default judgments.” See Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 84(citing Sykes II, 285 F.R.D. at 290 (internal quotation marks and citation omitted).) 

• “Here, the common issues for the Class are whether Mr. Wolf and Mr. McAleenan lawfully served as Acting Secretaries of DHS at the relevant times and whether the Wolf Memorandum was arbitrary and capricious in violation of the APA. (See Fourth Amend. Compl. (Dkt. 308) 9 183.) The common issues for the Subclass are whether the members are entitled to have their applications adjudicated in accordance with the Napolitano Memorandum and whether DHS’s failure to do so, as well as its failure to give notice that it was applying the Wolf Memorandum and the Edlow Memorandum, violated the due process rights of the class members.” See Vidal v. Wolf, 501 F. Supp. 3d 117, 135(citation omitted.) 

3rd Circuit 

A putative class satisfies Rule 23(a)’s commonality requirement if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class. Again, that bar is not a high one. We have acknowledged commonality to be present even when not all plaintiffs suffered an actual injury, when plaintiffs did not bring identical claims, and, most dramatically, when some plaintiffs’ claims may not have been legally viable. In reaching those conclusions, we explained that the focus of the commonality inquiry is not on the strength of each plaintiff’s claim, but instead is on whether the defendant’s conduct was common as to all of the class members. See Rodriguez v. Nat’l City Bank, 726 F.3d 372, 382 (3d Cir. 2013.) 

The class members’ claims must depend upon a common contention that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each of the claims in one stroke. See In re NFL Players Concussion Injury Litig., 821 F.3d 410, 426–27 (3d Cir. 2016.) 

Rule 23(a)(2)’s commonality requirement does not require identical claims or facts among class members. For purposes of Rule 23(a)(2), even a single common question will do. See Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 597 (3d Cir. 2012.) 

For commonality, the bar is not high. It does not require identical claims or facts among class members. A single common question is sufficient. In fact, as long as all putative class members were subjected to the same harmful conduct by defendant, Rule 23(a) will endure many legal and factual differences among the putative class members. See Scanlan v. Am. Airlines Grp., Inc., 2021 U.S. Dist. LEXIS 194693, at *11 (E.D. Pa. Oct. 8, 2021.) 

The Third Circuit has found this requirement is easily met because a single issue of fact or law will suffice. In fact, class members can assert such a single common complaint even if they have not all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice. Moreover, because they do not also involve an individualized inquiry for the determination of damage awards, injunctive actions by their very nature often present common questions satisfying Rule 23(a)(2). See Murphy v. Charles Tyrwhitt, 2020 U.S. Dist. LEXIS 222540, at *6–7 (W.D. Pa. Nov. 25, 2020.) 

The 3rd Circuit has found commonality in the following fact patterns to justify class certification under Rule 23(a) of the FRCP: 

• “Even if players’ particular injuries are unique, their negligence and fraud claims still depend on the same common questions regarding the NFL’s conduct. For example, when did the NFL know about the risks of concussion? What did it do to protect players? Did the League conceal the risks of head injuries? These questions are common to the class and capable of classwide resolution.” See In re NFL Players Concussion Injury Litig., 821 F.3d 410, 427. 

• “Marcus seeks to offer evidence about, among other things, whether Bridgestone RFTs are “defective,” whether the defendants had a duty to disclose those defects, and whether the defendants did in fact fail to disclose those defects. These issues of fact and law (or some subset of them) apply to each of Marcus’s causes of actions against each of the defendants, and are issues common to all class members. Accordingly, the District Court did not abuse its discretion in finding the commonality requirement to be satisfied.” See Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 597 (footnote omitted.) 

• “The court agrees with plaintiff that there exists a common question of law for the proposed classes in Counts I and III as to whether short-term military leave is comparable to jury duty and bereavement and should thus be similarly credited or compensated. The fact that different work groups may be compensated for jury duty and bereavement differently than other work groups is not relevant to this discussion. USERRA does not require that all leave for military service be compensated, only that such leave be compensated when comparable leave is compensated.” “There is also a common question for the proposed subclass in Count II. That question is whether AAG has breached the terms of the Plan by not crediting the short-term military leave of American pilots.” See Scanlan v. Am. Airlines Grp., Inc., 567 F. Supp. 3d 521, 529-530. 

• “The Plaintiffs identify two principal common questions: first, “whether they have been, are being and/or will be denied full and equal access to the Defendant’s website without proper accommodation; and second, “what actions are required under the law to ensure Defendant’s online store is accessible to the Plaintiffs” and the purported class members.” See Murphy v. Charles Tyrwhitt, 2020 U.S. Dist. LEXIS 222540, *7(citations omitted.) 

4th Circuit 

In order to satisfy commonality, putative class members must have claim to have suffered the same injury and their claims must depend upon a common contention capable of classwide resolutions. Moreover, the Court is mindful that Rule 23 does not set forth a mere pleading standard and that Plaintiffs must show that there are in fact common questions of law or fact, capable of generating common answers, in order to certify a class. This requires a rigorous analysis which may overlap with the merits of Plaintiffs’ underlying claim. However, the Court is also mindful that Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. See Jahagirdar v. Comput. Haus NC. Inc., 2021 U.S. Dist. LEXIS 214129, at *10–11 (W.D.N.C. Nov. 5, 2021.) 

A common question is one that can be resolved for each class member in a single hearing, and does not turn on a consideration of the individual circumstances of each class member. See In re Titanium Dioxide Antitrust Litig., 284 F.R.D. 328, 337 (D. Md. 2012.) 

Although the rule speaks in terms of common questions, what matters to class certification is the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. A single common question will suffice, but it must be of such a nature that its determination will resolve an issue that is central to the validity of each one of the claims in one stroke. See EQT Prod. Co. v. Adair, 764 F.3d 347, 360 (4th Cir. 2014.) 

Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. As such, a court must examine whether differences between class members impede the discovery of common answers. See Brown v. Nucor Corp., 785 F.3d 895, 909 (4th Cir. 2015.) 

The language of Rule 23(a)(2) is easy to misread, since any competently crafted class complaint literally raises common questions. The class members claims must depend upon a common contention, which must be of such a nature that is capable of classwide resolution. This requires that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. The commonality test is qualitative not quantitative. Quantitatively, almost by definition there will always be more individual issues than common liability issues. Qualitatively, however, liability issues may far exceed in complexity the more mundane individual issues. See Naparala v. Pella Corp., 2016 U.S. Dist. LEXIS 72442, at *17 (D.S.C. June 3, 2016.) 

The 4th Circuit has found commonality in the following fact patterns to justify class certification under Rule 23(a) of the FRCP: 

• “For each of the five classes, Plaintiffs allege minimum wage and overtime violations, inaccurate timekeeping, unauthorized deductions, issues with commissions and bonuses, and failure to timely pay final paychecks—all in violation of federal and state law.” See Jahagirdar v. Computer Haus NC. Inc., 2021 U.S. Dist. LEXIS 214129, *11. 

• “Here, Plaintiffs allege a multi-year price-fixing conspiracy that led to all class members being subjected to artificially inflated prices for TiO2.” See In re Titanium Dioxide Antitrust Litig., 284 F.R.D. 328, 337. “Plaintiffs have identified several questions that they assert are common to the class” and “[m]ost notably, Plaintiffs maintain that the existence of the conspiracy is the central issue in this litigation.” See In re Titanium Dioxide Antitrust Litig., 284 F.R.D. 328, 338. “…[The] Court [found] by a preponderance of the evidence that the existence of the alleged conspiracy, standing alone, [was] sufficient to establish commonality.” See In re Titanium Dioxide Antitrust Litig., 284 F.R.D. 328, 338. 

5th Circuit 

To satisfy the commonality requirement, class members must raise at least one contention that is central to the validity of each class member’s claims. But this contention need not relate specifically to the damages component of the class members’ claims. Even an instance of injurious conduct, which would usually relate more directly to the defendant’s liability than to the claimant’s damages, may constitute the same injury. Thus, the legal requirement that class members have all suffered the same injury can be satisfied by an instance of the defendant’s injurious conduct, even when the resulting injurious effects—the damages—are diverse. See In re Deepwater Horizon, 739 F.3d 790, 810–11 (5th Cir. 2014.) 

The commonality test is no longer met when the proposed class merely establishes that there is at least one issue whose resolution will affect all or a significant number of the putative class members. Rather, Rule 23(a)(2) requires that all of the class member’s claims depend on a common issue of law or fact whose resolution will resolve an issue that is central to the validity of each one of the class member’s claims in one stroke. See M.D. v. Perry, 675 F.3d 832, 840 (5th Cir. 2012.) 

What matters to class certification is not the raising of common ‘questions’—even in droves—but, rather the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers. In assessing commonality, this Court must explain how the standard is met with specific reference to the claims, defenses, relevant facts, and applicable substantive law raised by the class claims and must address actual or potential differences in purported class members’ individual circumstances and claims. See Page v. State Farm Life Ins. Co., 2022 U.S. Dist. LEXIS 23876, at *24 (W.D. Tex. Feb. 10, 2022.) 

Rule 23(a)(2), or commonality, requires a question of law or fact common to the proposed class. The purpose of this requirement is to determine whether maintenance of a class action is economical and whether the named plaintiff ‘s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence; in short, whether all their claims can productively be litigated at once. Commonality can be established by a single common question of law or fact, so long as resolution of that question will resolve an issue that is central to the validity of each one of the class member’s claims in one stroke. See Spegele v. USAA Life Ins. Co., 336 F.R.D. 537, 548 (W.D. Tex. 2020.) 

Commonality does not require that all questions of law and fact be common, or that each class member have suffered a violation of the same provision of law. Instead, their claims must depend upon a common contention. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Commonality is informed by the defendant’s conduct as to all class members and any resulting injuries common to all class members. The focus in the settlement context should be on the conduct (or misconduct) of the defendant and the injury suffered as a consequence. See In re Heartland Payment Sys., 851 F. Supp. 2d 1040, 1052–53 (S.D. Tex. 2012.) 

The 5th Circuit has found commonality in the following fact patterns to justify class certification under Rule 23(a) of the FRCP: 

• “Page alleges that State Farm’s monthly COI deductions from its policyholders’ accounts exceed the amounts disclosed in and permitted under the Policy and that this conduct constitutes breach of contract (under either theory) and conversion in violation of Texas law. Page’s theory underlying this case is that, after pricing its COI rates based on the express “mortality factors” set forth in the contract—the insured’s age on the Policy anniversary, sex, and applicable rate class—State Farm increased those rates with undisclosed profit and expense loads unrelated to the insured’s mortality risk. According to Page’s motion for class certification, State Farm had a uniform methodology of calculating these deductions for Form 94030 policies and common evidence of that methodology will establish whether Sate Farm is liable for all three of these causes of action.” See Page v. State Farm Life Ins. Co., 584 F. Supp. 3d 200, 216. 

• “[W]hether Defendant used factors outside those enumerated in the Class Policies to determine its COI Rates will rely on the same evidence throughout the class” and “whether Defendant’s mortality expectations improved since it priced or repriced the Class Policies is also common throughout the class.” See Spegele v. USAA Life Ins. Co., 336 F.R.D. 537, 552. 

• “The common factual question in this case is what actions Heartland took before, during, and after the data breach to safeguard the Consumer Plaintiffs’ financial information.” See In re Heartland Payment Sys., 851 F. Supp. 2d 1040, 1054. “Questions of law common to all class members include whether Heartland’s actions violated the Fair Credit Reporting Act” and “Answering the factual and legal questions about Heartland’s conduct will assist in reaching classwide resolution.” See In re Heartland Payment Sys., 851 F. Supp. 2d 1040, 1054 (footnote omitted.) 

66h Circuit 

To satisfy Rule 23(a)(2), a plaintiff’s claims must depend upon a common contention which is of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. See Davis v. Cintas Corp., 717 F.3d 476, 487 (6th Cir. 2013.) 

This inquiry focuses on whether a class action will generate common answers that are likely to drive resolution of the lawsuit. See In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 852 (6th Cir. 2013.) 

The second Rule 23(a) factor is commonality. The Sixth Circuit has explained this factor as follows: A class action may be maintained if there are questions of law or fact common to the class and the plaintiffs’ claims are typical of the claims of the class. Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. This inquiry focuses on whether a class action will generate common answers that are likely to drive resolution of the lawsuit. Commonality is not required on every question raised in a class action. Rather, there is commonality when the legal question linking the class members is substantially related to the resolution of the litigation Individual class members need not be identically situated to meet the commonality requirement. See Stephenson v. Fam. Sols. of Ohio, Inc., 2021 U.S. Dist. LEXIS 65421, at *39–40 (N.D. Ohio Apr. 5, 2021.) 

Traditionally, it has been the rule that to satisfy the commonality requirement of Rule 23(a)(2), only one single issue that is common to all members of the class is required, not multiple issues. The language of commonality, however, is easy to misread, since any competently crafted class complaint literally raises common questions. The essential commonality inquiry, therefore, is not whether common questions exist, but rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities between members of the proposed class can potentially impede the satisfaction of this requirement. Indeed, commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. See J.b-K-1 v. Meier, 2020 U.S. Dist. LEXIS 43934, at *17–18 (E.D. Ky. Mar. 13, 2020.) 

Recitation of common questions alone is insufficient to obtain class certification. What the rule demands is the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Thus, a class action may be appropriate where the issues involved are common to the class as a whole and when they turn on questions of law applicable in the same manner to each member of the class such that the common issue may be litigated for all members in an economical fashion. See Scott v. First Am. Title Ins. Co., 276 F.R.D. 471, 477 (E.D. Ky. 2011.) 

Even one common question will suffice to establish this commonality requirement. The mere fact that questions peculiar to each individual member of the class action remain after the common questions of the defendant’s liability have been resolved does not dictate the conclusion that a class action is impermissible. See Ham v. Swift Transp. Co., 275 F.R.D. 475, 484 (W.D. Tenn. 2011.) 

The 6th Circuit has found commonality in the following fact patterns to justify class certification under Rule 23(a) of the FRCP: 

• “All of the putative class members share the same job title (i.e., QMHS) and were required, as part of their job duties, to spend time travelling between clients, entering documentation into patient records, and dealing with no show appointments. All putative class members recorded their time on time sheets which were completed according to the protocols set forth in Family Solutions’ employee handbook. Defendant Smith herself testified that all QMHSs were subject to the same timekeeping and pay policies with respect to time spent travelling and entering documentation into patient records.” See Stephenson v. Family Sols. of Ohio, Inc., 2021 U.S. Dist. LEXIS 65421, *41-42 (citations omitted.) Also, “the same central legal question is at issue with respect to all members of the putative Rule 23 Class: whether Defendants were required to compensate putative QMHS class members for time spent traveling between clients, dealing with no show appointments, and entering documentation into patient records.” See Stephenson v. Family Sols. of Ohio, Inc., 2021 U.S. Dist. LEXIS 65421, *44. 

• “Here, all members of the Children’s Class and Caregivers’ Class alike challenge the policies of the Cabinet and DCBS that have denied them FCMP benefits as well as notice and a hearing to contest the denial of those benefits. A question of law common to these classes is whether removed children placed directly by a court into the custody of a relative or fictive kin are nevertheless under the “placement and care responsibility” of the cabinet. The common question facing the Cabinet Class is “whether the policy and practice of the Cabinet/DCBS not to pay FCMP benefits . . . from the date of placement violates state or federal law and/or constitutional law,” as well as whether Cabinet Class members are entitled to an opportunity for a hearing on that issue. Lastly, a common question of law among members of the Notice and Hearing Class, which contains members from the Children’s, Caregivers’ and Cabinet Custody Classes, is whether Defendants provided adequate notice of class members’ potential eligibility for FCMP benefits, and whether they are entitled to a fair hearing and due process review of a denial of benefits.” See J.B-K-1 v. Meier, 2020 U.S. Dist. LEXIS 43934, *18-19 (citations omitted.) 

• “Even though Plaintiffs allege several alternative theories of recovery, including breach of contract, negligence, and violation of the TCPA, Plaintiffs present common questions equally applicable across the class regarding the elements of each cause of action. These include not just common questions as to the legal duties and obligations imposed on Swift by law, but also whether Swift systematically, either through policy or custom, engaged in actions that later injured Plaintiffs when state authorities revoked CDLs obtained through Swift-administered testing.” See Ham v. Swift Transp. Co., 275 F.R.D. 475, 484. 

7th Circuit 

Rule 23(a)(2)’s commonality prerequisite requires that the class claims involve questions of law or fact common to the class. It’s true that even a single common question will do. See Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497 (7th Cir. 2012.) 

Commonality requires the plaintiffs to demonstrate that the class members have suffered the same injury. The class claims must depend upon a common contention, and that common contention, moreover, must be of such a nature that it is capable of class-wide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. See Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497 (7th Cir. 2012.) 

Plaintiffs meet this requirement of commonality by demonstrating that class members have suffered the same injury and that their claims depend upon a common contention of such a nature that it is capable of class-wide resolution. Determination of the truth or falsity of that common contention will resolve an issue that is central to the validity of each one of the claims in one stroke. Rule 23 requires only one common question to satisfy commonality. See T.K. v. Bytedance Tech. Co., Ltd., 2021 U.S. Dist. LEXIS 255383, at *9 (N.D. Ill. Mar. 25, 2021.) 

Rule 23(a)(2) does not demand that every member of the class have an identical claim, and some degree of factual variation will not defeat commonality provided that common questions yielding common answers can be identified. See Bernal v. NRA Grp., LLC, 318 F.R.D. 64, 74 (N.D. Ill. 2016.) 

The commonality and typicality requirements tend to merge because both “serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. See Taylor v. Alltran Fin., LP, 2018 U.S. Dist. LEXIS 157808, at *8 (S.D. Ind. Sep. 17, 2018.) 

The 7th Circuit has found commonality in the following fact patterns to justify class certification under Rule 23(a) of the FRCP: 

• “Here, Plaintiffs allege that Defendants “surreptitiously tracked, collected, and disclosed the personally identifiable information and/or viewing data of children under the age of 13,” “without parental consent.” All members of the Proposed Settlement Class share statutory claims based upon Defendants’ alleged violations of federal and California privacy law. The core issue of whether Defendants collected and shared class members’ personally identifiable information without parental consent remains central to these claims.” See T.K. v. Bytedance Tech. Co., Ltd., 2022 U.S. Dist. LEXIS 65322, *9 (citations omitted.) 

• “Each putative class member’s claim presents a common question: whether NRA’s form collection letter—in particular, the letter’s assessment of percentage-based collection costs—violated the FDCPA.” See Bernal v. NRA Grp., LLC, 318 F.R.D. 64, 74 (citations omitted.) 

8th Circuit 

Commonality first requires a plaintiff to show that there are questions of law or fact common to the class. How one articulates the claims in any given case could artfully carry the day on the issue of commonality, since any competently crafted class complaint literally raises common questions. But merely advancing a question stated broadly enough to cover all class members is not sufficient under Rule 23(a)(2). Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. See Ebert v. Gen. Mills, Inc., 823 F.3d 472, 478 (8th Cir. 2016.) 

A proponent of class certification cannot show commonality by demonstrating merely that the class members have all suffered a violation of the same provision of law. Rather, their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. This common contention must also be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. In other words, a proponent of certification must satisfy the commonality requirement by showing that a classwide proceeding will generate common answers apt to drive the resolution of the litigation. See Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th Cir. 2011.) 

Rule 23(a)(2) first requires the existence of questions of law or fact common to the class, though not all questions of law or fact must be common to every member of the class. The existence of common questions alone, however, is insufficient; the common questions must also generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class impede the generation of common answers. Comparing the evidence a plaintiff uses to sustain her individual claim to the evidence she uses to prove the class claims may also show whether common questions and answers exist. Second, a plaintiff must show that such questions are applicable in the same manner to each member of the class. By demonstrating that a common contention exists, the plaintiff shows that the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Third, a plaintiff must demonstrate that the class members have suffered the same injury. Showing that class member suffered a common statutory violation is insufficient to show they suffered a common injury. See Thome v. Sayer Law Grp., P.C., 2021 U.S. Dist. LEXIS 248582, at *12–13 (N.D. Iowa Nov. 16, 2021.) 

Rule 23(a)(2) requires the existence of questions of law or fact common to the class, though not all questions of law or fact must be common to every member of the class. The existence of common questions alone, however, is insufficient; the common questions must generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class impede the generation of common answers. Sufficient commonality exists when common questions and practices tie class members’ claims together. See Karg v. Transamerica Corp., 2020 U.S. Dist. LEXIS 110323, at *6 (N.D. Iowa Mar. 25, 2020.) 

There is no requirement that every question of law or fact be common to every member of the class, and indeed, for purposes of Rule 23(a)(2) even a single common question will do. See Huyer v. Wells Fargo & Co., 295 F.R.D. 332, 337 (S.D. Iowa 2013.) 

The 8th Circuit has found commonality in the following fact patterns to justify class certification under Rule 23(a) of the FRCP: 

• “Here, fundamental questions involving defendants’ alleged fiduciary breaches are common to proposed class members. As plaintiffs presented in their brief, these questions include: (1) whether defendants are fiduciaries and, if so, whether they breached their duties; (2) whether the Plan and its participants suffered losses as a result and, if so, how to calculate the losses; and (3) “what equitable relief should be imposed to remedy such breaches and to prevent future ERISA violations.”” See Karg v. Transamerica Corp., 2020 U.S. Dist. LEXIS 110323, *7 (citation omitted.) 

• “Plaintiffs allege that all members of the proposed classes were injured in the same way, i.e., by being charged for drive-by property inspections ordered by Wells Fargo, through its Fidelity software, without any prior determination that these inspections were necessary to protect the lender’s interest in the respective property.” See Huyer v. Wells Fargo & Co., 295 F.R.D. 332, 337. 

9th Circuit 

To show commonality, plaintiffs must demonstrate that there are questions of fact and law that are common to the class. The requirements of Rule 23(a)(2) have been construed permissively, and all questions of fact and law need not be common to satisfy the rule. See Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011.) 

A finding of commonality requires questions of law or fact common to the class. All questions of fact and law need not be common to satisfy the commonality requirement. The existence of shared legal issues with divergent factual predicates is sufficient. A plaintiff must demonstrate that the class members have suffered the same injury, which means that their claims must depend upon a common contention. But a common contention need not be one that will be answered, on the merits, in favor of the class. See Gonzalez v. U.S. Immigration & Customs Enf’t, 975 F.3d 788, 807 (9th Cir. 2020.) 

Plaintiffs’ claims must depend upon a common contention such that determination of their truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. What matters to class certification is not the raising of common questions—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Plaintiffs need not show, however, that every question in the case, or even a preponderance of questions, is capable of class wide resolution. So long as there is even a single common question, a would-be class can satisfy the commonality requirement of Rule 23(a)(2). Thus, where the circumstances of each particular class member vary but retain a common core of factual or legal issues with the rest of the class, commonality exists. See Parsons v. Ryan, 754 F.3d 657, 675 (9th Cir. 2014.) 

The Ninth Circuit is not alone in its view that Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541 (2011) is new precedent altering, or a significant legal development. Other courts, including district courts within this Circuit, have variously recognized that Wal-Mart: (1) sets forth a heightened standard of commonality; (2) represents a significant restatement of the commonality requirement; (3) clarifies the Rule 23(a) commonality element; and (4) undoubtedly increases the burden on class representatives by requiring that they identify how common points of facts and law will drive or resolve the litigation. See Parra v. Bashas’, Inc., 291 F.R.D. 360, 370–71 (D. Ariz. 2013.) 

The commonality and typicality requirements tend to merge because both focus on the similarities in claims across the class. See Arrendondo v. Delano Farms Co., 2011 U.S. Dist. LEXIS 44134, at *44 (E.D. Cal. Apr. 18, 2011.) 

The 9th Circuit has found commonality in the following fact patterns to justify class certification under Rule 23(a) of the FRCP: 

• “What all members of the putative class and subclass have in common is their alleged exposure, as a result of specified statewide ADC policies and practices that govern the overall conditions of health care services and confinement, to a substantial risk of serious future harm to which the defendants are allegedly deliberately indifferent.” See Parsons v. Ryan, 754 F.3d 657, 678. 

• “There are not millions of potential plaintiffs here. Nor are the plaintiffs scattered across the nation; they all work or worked at Arizona Food City stores. And, they are not challenging “millions of employment decisions;” rather, at this point, they are only challenging Bashas’ decision to pay its employees pursuant to its two-tiered wage scales.” See Parra v. Bashas’, Inc., 291 F.R.D. 360, 376. 

10th Circuit 

Rule 23(a) requires a district court to ensure that there are questions of law or fact common to the class. Factual differences in the claims of the individual class members should not result in the denial of class certification where common questions of law exist. Commonality requires that the plaintiff demonstrate that the class members have suffered the same injury such that the claims of the class are based on a common contention and that the determination of the truth or falsity of this contention will resolve an issue that is central to the validity of each one of the claims in one stroke. In other words, plaintiffs must have a common question of fact or law that will connect many individual claims to the relief sought by the class. Even a single common question will satisfy commonality. See Paulson v. McKowen, 2022 U.S. Dist. LEXIS 9995, at *14 (D. Colo. Jan. 19, 2022.) 

Commonality requires that there are questions of law or fact common to the class. Even factual differences in the claims of the individual putative class members should not result in a denial of class certification where common questions of law exist. A single common question will suffice to satisfy rule 23(a)(2), but the question must be one that is central to the validity of each one of the claims. See Zuniga v. Bernalillo County, 319 F.R.D. 640, 662 (D.N.M. 2016.) 

The mere raising of a common question does not automatically satisfy Rule 23(a)’s commonality requirement. Rather, the common contention must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. See Wallace B. Roderick Revocable Living Tr. v. XTO Energy, Inc., 725 F.3d 1213, 1218 (10th Cir. 2013.) 

The commonality requirement was widely perceived to lack teeth before the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) which grafted the following requirements onto rule 23(a)(2): (i) that the common question is central to each claim’s validity that the proposed class brings; and (ii) that the common question is capable of a common answer. See Daye v. Cmty. Fin. Serv. Ctrs., LLC, 313 F.R.D. 147, 161 (D.N.M. 2016.) 

In determining commonality, what matters is the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation. Despite the rigor of the Rule 23 requirements, commonality has never been understood to require that all issues must be identical as to each member, but rather requires that plaintiffs identify some unifying thread among the members’ claims that warrants class treatment. See Felps v. Mewbourne Oil Co., 336 F.R.D. 664, 670 (D.N.M. 2020.) 

The 10th Circuit has found commonality in the following fact patterns to justify class certification under Rule 23(a) of the FRCP: 

• Here, there are many common questions of law and fact. The parties explain that plaintiff’s claims concern common alleged omissions from GrowCo offering documents about Mr. McKowen’s background and there are questions about whether the alleged omissions were material to GrowCo investors’ decisions to invest. These issues of fact and law are common to all Class Members’ claims.” See Paulson v. McKowen, 2022 U.S. Dist. LEXIS 9995, *14-15 (citations omitted.) 

• “In short, “the common contention of the class members in the instant case is that they were not properly compensated for overtime hours” because Defendants misclassified them as exempt from the NMMWA’s overtime requirements. Chado v. Nat’l Auto Insps., LLC, 17-cv-2945, 2019 U.S. Dist. LEXIS 75392, 2019 WL 1981042, at *5 (D. Md. May 3, 2019). “If that is true, then every member of the class is entitled to a recomputation of compensation based upon actual hours worked.”” See Felps v. Mewbourne Oil Co., 336 F.R.D. 664, 672(citation omitted.) 

11th Circuit 

Commonality requires that there be at least one issue whose resolution will affect all or a significant number of the putative class members. The Supreme Court has emphasized that, for purposes of Rule 23(a)(2) even a single common question will do. See Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F. App’x 782, 788–89 (11th Cir. 2014.) 

While both the commonality and typicality requirements focus on whether a sufficient nexus exists between the legal claims of the named class representatives and those of individual class members, commonality pertains to the group characteristics of the class as a whole, whereas typicality pertains to the individual characteristics of the named plaintiff in relation to the class. To meet the commonality requirement, the moving party must demonstrate that the class action involves issues susceptible to class-wide proof. The burden of establishing commonality is relatively light. Essentially, the moving party must show that the determination of the truth or falsity of a common contention will resolve an issue that is central to the validity of each of the claims in one stroke. Commonality therefore requires at least one issue whose resolution will affect all or a significant number of the putative class members. Notably, Rule 23 does not require that all the questions of law and fact raised by the dispute be common. See Haines v. Fid. Nat’l Title of Fla., 2022 U.S. Dist. LEXIS 28843, at *29–30 (M.D. Fla. Feb. 17, 2022.) 

In regard to commonality, to satisfy Fed. R. Civ. P. 23(a)(2) the claims of every class member must depend upon a common contention. This common contention must be of such a nature that it is capable of class-wide resolution—which means the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Furthermore, a class action must involve issues that are susceptible to class-wide proof. Commonality requires that there be at least one issue whose resolution will affect all or a significant number of the putative class members. See Arnold v. State Farm Fire & Cas. Co., 2020 U.S. Dist. LEXIS 219533, at *14 (S.D. Ala. Nov. 23, 2020.) 

Not all questions of law and fact need be common, but as the Supreme Court recently clarified, this requirement is not met merely because the putative class members allegedly all suffered a violation of the same provision of law. See Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674, 684–85 (S.D. Fla. 2013.) 

The commonality requirement demands only that there be questions of law or fact common to the class. This part of the rule does not require that all the questions of law and fact raised by the dispute be common, or that the common questions of law or fact predominate over individual issues. See Stark v. Nortek Glob. HVAC LLC, 2016 U.S. Dist. LEXIS 18795, at *26 (S.D. Fla. Jan. 28, 2016.) 

The 11th Circuit has found commonality in the following fact patterns to justify class certification under Rule 23(a) of the FRCP: 

• “Put plainly, common issues regarding the interpretation of the FARBAR and the settlement statements and its effect on Fidelity’s rights and duties to cash buyers in real estate transactions in Florida during the applicable period will affect all or a significant number of the putative class members.” See Haines v. Fid. Nat’l Title of Fla., 2022 U.S. Dist. LEXIS 28843, *33-34(citing Williams, 568 F.3d at 1355 (citation and quotation omitted).) 

• “As Arnold asserts, the overarching issue in this case is whether State Farm breached its agreements with policyholders by improperly withholding labor depreciation from its payments to policyholders for covered property damage. All of the policies implicated in the lawsuit cover property located in Alabama, and thus Alabama law applies uniformly.” See Arnold v. State Farm Fire & Cas. Co., 2020 U.S. Dist. LEXIS 219533, *14-15 (citation omitted.) 

D.C. Circuit 

Under Rule 23(a), commonality requires that plaintiffs advance a common contention that must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. See Cobell v. Salazar, 441, 679 F.3d 909, 922 (D.C. Cir. 2012.) 

Rule 23(a)(2) requires the existence of questions of law or fact common to the class. However, at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality. For that reason, a common question must be one of such a nature that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. In other words, class members must have suffered the same injury for the same reason, such as a uniform policy or practice that is illegal. As the Supreme Court has explained, it is not common questions that matter so much as the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. See In re Fannie Mae, 2021 U.S. Dist. LEXIS 234503, at *17–18 (D.D.C. Dec. 7, 2021.) 

Broadly speaking, the test for commonality is met where there is at least one issue, the resolution of which will affect all or a significant number of the putative class members. On the one hand, factual variations among the class members will not defeat the commonality requirement, so long as a single aspect or feature of the claim is common to all proposed class members. On the other hand, mere allegations of systemic violations of the law will not automatically satisfy Rule 23(a)’s commonality requirement. See Lightfoot v. District of Columbia, 273 F.R.D. 314, 324–25 (D.D.C. 2011.) 

Rule 23(a)(2) does not require that all questions be common to the class. Rather, as noted, the Supreme Court acknowledged that even a single common question will do, as long as its determination will resolve an issue that is central to the validity of each one of the claims in one stroke. The requested relief must respond, at least in part, to a common harm suffered as a result of a policy or practice that affects each class member. See DL v. District of Columbia, 713 F.3d 120, 128 (2013.) 

The D.C. Circuit has found commonality in the following fact pattern to justify class certification under Rule 23(a) of the FRCP: 

• “For all three proposed classes, their claims stem from a common occurrence—the execution of the Third Amendment on August 17, 2012. The complained-of injuries—lost dividends and liquidation preference—are also common to the class members on a per-share basis. And the members’ claims invoke a common legal theory. All members claim that defendants’ execution of the Third Amendment breached the implied covenant of good faith and fair dealing applicable to the members’ stock certificates.” See In re Fannie Mae, 2021 U.S. Dist. LEXIS 234503, *19 (citation omitted.) 

Federal Circuit 

Commonality requires that there be questions of law or fact common to the class. The threshold of commonality is met when there is at least one issue whose resolution will affect all or a significant number of the putative class members. This threshold, however, is not high. See DeMons v. United States, 119 Fed. Cl. 345, 354 (2014.) 

Plaintiffs must show that there are questions of law or fact common to the class. Plaintiffs’ claims must depend upon a common contention that must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. The purpose of the commonality requirement is to ensure proposed classes are sufficiently cohesive to warrant adjudication by representation; and to prevent certification of a class that will degenerate into a series of individual trials. See Bell v. United States, 123 Fed. Cl. 390, 400 (2015.) 

Individual class members need not be identically situated to warrant a finding of commonality; rather, to meet RCFC 23(a)(2), the questions underlying the claims of the class merely must share essential characteristics, so that their resolution will advance the overall case. See Geneva Rock Prods. v. United States, 100 Fed. Cl. 778, 788 (2011.) 

The Federal Circuit has found commonality in the following fact patterns to justify class certification under Rule 23(a) of the FRCP: 

• “On January 29, 2010, Lisa Adams et al. (“Adams Class”) filed a Class Action Complaint For Money Damages in the United States Court of Federal Claims alleging that they had been wrongfully deprived of “additional pay” to which they were entitled, pursuant to 38 U.S.C. § 7454(b)(3). On the same date, the Adams Class also filed a Motion For Class Certification, pursuant to RCFC 23…” See DeMons v. United States, 119 Fed. Cl. 345, 348 (citation omitted). 

• “The determination of whether or not the structure erected by defendant on plaintiffs’ properties exceeds the scope of the easements held by defendant is a common question of law.” See Bell v. United States, 123 Fed. Cl. 390, 401.