What is Rule 23 of the US Federal Rules of Civil Procedure?

The Federal Rules of Civil Procedure (FRCP) are the laws that govern civil court proceedings in U.S. district courts. The Supreme Court promulgates these rules in accordance with the Rules Enabling Act, which “authorizes the Supreme Court to prescribe general rules of practice and procedure and rules of evidence for the federal courts.”

Once this is done, Congress has seven months to veto the rules, or they become part of the FRCP. The Supreme Court’s modifications to the rules rest on recommendations from the Judicial Conference, which convenes twice a year to discuss policy and administrative concerns at the federal court level.

The goal of FRCP is to ensure that every action or proceeding ends fairly, quickly, and effectively. These rules were first adopted by the Supreme Court in 1937 and transmitted to Congress in 1938. They have been amended several times since then.

One of the key provisions of the FRCP is Rule 23. This rule governs how class actions are handled. FRCP 23 requires “class certification” for a case to proceed to class action litigation. This means that a judge must “certify” that the case is the right kind of case to move forward as a class action. This is an additional hurdle that other types of lawsuits do not have. So it is important to hire a class action lawyer who understands how to get a class certified under Rule 23.

To understand how the federal rule of civil procedure 23 affects class action cases, we must first examine what it is and what it does.

What Does the Federal Rule of Civil Procedure 23 Do?

Rule 23 is the class action rule that applies in federal court, where most class actions are filed. For the first time in 15 years, FRCP 23 was amended in 2018. These changes were meant to implement uniform class action practices that were initially done on a court-by-court basis. Different jurisdictions used different rules, making it difficult to achieve any consistency in class action cases. The amendments focused on rules relating to federal class-action notices, settlements, and appeals.

Federal rule of civil procedure 23 dictates when a class can be certified, the type of notice, if any, that is required for the class if it is certified, as well as the procedures that must be followed in relation to class certification. Keep reading to learn the nuances of FRCP 23.

Prerequisites and Types of Class Actions

To protect members’ rights and avoid potentially impractical class action suits, FRCP 23 provides a framework for the judicial process once the court establishes whether a case can be considered a class action. Rule 23 also offers guidance to settlement administrators and counsel, specifying the steps needed to move forward with a class action litigation or the settlement process.

A suit may be certified as a class action if it meets the requirements of FRCP 23(a). The requirements for class certification are:

  • Numerosity. There must be enough claims to warrant a class action lawsuit. Some courts have concluded that there should be at least 40 members to establish numerosity. Others have ruled that no specific number is required, and that the court may review other factors like the nature of the action and geographical dispersion.
  • Commonality. There must be questions of law or fact common to the class. This means that there must be at least one issue that is common to all members of the class and that the resolution of that issue will affect all class members.
  • Typicality. This means the class representatives must have claims similar to those of the other class members.
  • Adequacy of representation. The class representatives must fairly and adequately represent the interests of the class. This means that the class representatives must have the same interests and incentives as the other class members and be capable of proactively representing the class members’ interests.

Predominance and Superiority

If a case meets all the above conditions under FRCP 23(a), an action must also satisfy one of the following requirements of FRCP 23(b) for class action certification eligibility. The most common rule is for classes that seek monetary damages.


Often called the predominance rule, this rule requires a plaintiff to use a class-wide method establishing a specific type of loss for each member of the class. It requires that questions of fact or law common to members supersede any issues raised by individual members. This is to say that the court analyzes whether questions common to class members will predominate over those affecting individual members.


FRCP 23(b) also requires the court to determine how comparable the potential damages are to the actual harm and if the proposed class action lawsuit is superior to other available methods when adjudicating the controversy.

Overall, a party seeking class certification must meet the above requirements and show that a class action is a superior way to settle the dispute than other methods.

Certification Order

Here, the court must certify the case as a class action shortly after the class representatives have filed it. This order, which should be issued practically and timely, should define the class, its claims, issues, or defenses, as well as appoint counsel to represent the class.

Notice Requirements

Rule 23(c)(2), which concerns how class members should be notified, has for a long time required members to be notified using the “best notice that is practicable under the circumstances,” without explaining how such notices should be carried out. The current notice requirements for the federal rule of civil procedure 23 make it clear that notice can be sent in different ways, including electronically, as long as the proposed class has access to the internet.

Settlement, Voluntary Dismissal, or Compromise

A court-approved class action can only be settled, voluntarily dismissed, or compromised with the court’s permission. FRCP 23 outlines steps that the court must take in any of the above scenarios, including offering notice of the action to members of the class.

The court must also consider specific factors before making any determination, including:

  • The sufficiency of representation by the class counsel and representatives.
  • If the class settlement was negotiated fairly.
  • The adequacy of the relief offered to class members.
  • Whether or not members of the class were treated fairly in their individual capacities.

Class-Action Lawsuits and the Federal Rules of Civil Procedure 23

The most complex and high-stakes litigation in the U.S. is class action litigation. Fortunately, there is good news: FRCP 23, which governs class action lawsuits and settlements, establishes clear operational procedures and guidelines for all U.S. district courts. The amendments to FRCP 23 are meant to lead to a more streamlined and predictable class action process, making the settlement process easier.

To better understand the federal rule of civil procedure 23 and how it may affect your class action case, consider talking to an experienced commercial and business litigation attorney from Nix Patterson. Our knowledgeable legal team is ready to help you understand the ins and outs of FRCP 23. Call 512-328-5333 today to speak to our class action lawyers, or reach out online today.

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