Outside of California courts, California residents can bring a class action lawsuit in federal court if they meet certain requirements. Although the process of filing a class action in federal court is similar to the process in California state courts, there are some important differences to consider. If you are thinking about filing a class action lawsuit and you are a California resident, we recommend you consult an experienced, licensed California attorney.

Can you bring a class action lawsuit in federal court?

First, you must determine whether you can bring a suit in federal court. Plaintiffs can file a class action lawsuit in federal court if the law violated is a federal law, or, the amount sought is more than $5 million and any member of the class is from a state that is different from any defendant, or if any member of the class is a citizen of a foreign nation and any defendant is a US citizen or vice versa.

What are the requirements of Rule 23?

Rule 23 of the Federal Rules of Civil Procedure lays out the rules applicable to class action lawsuits, such as the requirements for a class to become certified by the court.

Rule 23(a) requires that the plaintiff must show, by a preponderance of the evidence, that the following four requirements are satisfied as to the group of plaintiffs:

·       Numerosity: the members making up the class are so numerous that it would be impractical for each individual to individually litigate their claim;

·       Commonality: there are common questions of law or fact among all of the class members;

·       Typicality: the claims or defenses of the representative plaintiffs are typical of the claims and defenses of all of the class members; and

·       Adequacy: the representative plaintiff(s) and its/their counsel will adequately represent the interests of the entire class.

According to federal case law, the numerosity requirement may be satisfied by a class numbering at least 40 members. In a recent case, however, the Seventh Circuit held that a 38-member class had not met the numerosity requirement because (i) all but two of the members were located in the Eastern District of Wisconsin, and (ii) the class’ claims would have allowed the individual plaintiffs to recover their attorney’s fees. This indicated to the court that it would not be impossible for the plaintiffs to be joined into one action, and the barrier to legal remedy was lower because the plaintiffs may have been able to recover their legal fees from the defendant. Thus, when considering whether to file in federal court or California state court, smaller classes should ensure that they can meet the numerosity requirement.

Another pitfall to watch for is the commonality requirement. It is not enough to show that the members of the class all have common questions. Instead, “[w]hat matters…[is] the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. [Citation.]” Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011). In other words, the claim of the class must be based on a contention that, if resolved, will resolve a central issue that will determine the validity of all of the claims “in one stroke.” Id.

In addition to the four requirements of Rule 23(a), the class must also fall within one of three types of classes in Rule 23(b).

Rule 23(b)(1) permits class action lawsuits where bringing a number of separate cases would (i) create a risk of inconsistent results, or (ii) impair or impede the ability of other class members to protect their own interests. If a class falls within the latter category it is known as a “limited fund class action,” and must meet the standard set forth in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).

Rule 23(b)(2) allows for class action lawsuits where the class is only seeking injunctive or declaratory relief. For this class, monetary damages can only be awarded if the damages are incidental to the relief sought.

Finally, Rule 23(b)(3) permits class action lawsuits where the class is seeking out monetary damages. This is the category most class actions will fall into. However, to satisfy the requirements of this subsection, the class must establish “predominance” and “superiority.”

“Predominance” is defined as “questions of law or fact common to class members [that] predominate over any questions affecting only individual members.” Rule 23(b)(3). To determine whether “predominance” exists, a plaintiff “must ‘demonstrate that the element of [the legal claim] is capable of proof at trial through evidence that is common to the class rather than individual to its members.’” Marcus v. BMW of N. Am. LLC, 687 F.3d 583, 600 (3d. Cir. 2012) quoting In re Hydorgen Peroxide Antitrust Litig., 552 F.3d 305, 311 (3d. Cir. 2009).

The second requirement, superiority, requires that a class action would be the best way to litigate the claims asserted.

Unlike California state courts, a federal court will examine the merits of the case when making a determination regarding predominance and superiority. For this reason, obtaining class certification in federal court is more difficult when compared to California state courts.

Further, unlike in California state courts, if class certification is denied in federal court, there is no automatic appeal. Instead, the class must file a petition appealing the denial within fourteen days of the order.


When deciding whether to file a class action lawsuit, it is important to consider the merits and disadvantages of filing in federal or California state courts. There are several advantages of filing in California state courts, which are generally more class action plaintiff-friendly when compared to federal courts. We encourage you to consult with an experienced class action lawsuit attorney licensed in California to ultimately decide where to file your class action lawsuit.

At AK Law, we have represented both individuals and classes of individuals in a variety of contexts. If you would like to discuss your case with us, please do not hesitate to call or email to schedule a consultation.