Rethinking Adequacy of Representation

Jay Tidmarsh, Notre Dame Law School


Class representatives and class counsel must adequately represent the members of a class. This principle forms the foundation for the modem American class action, and it determines the structure of Rule 23 of the Federal Rules of Civil Procedure and every analogous state class-action rule., The absence of adequate representation dooms the certification of a class. The gnawing fear that class representation is inadequate-manifested through such phrases as "collusion,", "conflicts of interest,"' "selling out the class,", and "sweetheart deals" -is an enduring criticism of class actions. Indeed, the demand of adequate representation is so irresistible that in recent years the principle has spread beyond class actions to other forms of aggregate litigation.